Supermarket clerk asserting that she and others similarly situated had been denied overtime pay as a result of a time-shaving policy wherein her employer allegedly deducted one hour per day for lunch breaks while she and others were only provided 30 minutes for such breaks was denied conditional certification of her wage and hour claim under the Fair Labor Standards Act (“FLSA”).  Zheng v. Good Fortune Supermarket Group (USA), Inc. (E.D.N.Y. Sept. 12, 2013).  The district court, in denying the plaintiff’s motion for conditional certification, determined that she had presented insufficient evidence of a common policy or plan subjecting store clerks to time-shaving during meal breaks.

The plaintiff sued to recover unpaid wages alleging that between December 2007 and July 2012 she and clerks at three other defendant-operated supermarkets were victims of a meal break time-shaving policy.  The only evidence submitted by the plaintiff in support of her motion to conditionally certify a class of store clerks was her own declaration.  In her sole declaration, the plaintiff claimed she “observed” other similarly compensated and similarly scheduled store clerks doing the same off-the-clock work during their lunch period and that such time worked by these clerks was not accurately reflected by the time keeping system due to the alleged time-shaving.  The plaintiff also alleged in her declaration that she was “informed” by other clerks that they had suffered the same illegal policies and “observed” and “heard” through co-workers about the defendant’s policy to not provide proper paystubs and written wage notices to all clerks.  The plaintiff contended that her single declaration and complaint provided a sufficient evidentiary basis for conditional certification and cited to other NY federal district court decisions that granted conditional certification based upon a single declaration.

The defendant argued that the plaintiff’s declaration rested on an “incredibly frail foundation” as it contained only “vague, conclusory and unsubstantiated claims.”  The plaintiff countered by arguing that the district court should ignore the defendant’s twenty-eight declarations because they raise factual disputes that are irrelevant in a conditional certification motion and were signed by current employees for fear of retaliation and may not have been understood by the declarants as there was no evidence that the signed statements had been translated into Chinese.

Notwithstanding the Second Circuit’s lenient standard for conditional certification requiring a “modest factual showing” that the named plaintiff(s) and potential opt-in plaintiffs together were victims of a common policy or plan that violated the FLSA, the district court held that the plaintiff had fallen far short of meeting this burden with sufficient evidence.  The plaintiff’s observations of other employees were unsubstantiated, according to the court, because she did not identify the employees by name or explain the basis for her observations.  Had she feared that disclosing the identities of the other employees might lead to retaliation, the district court explained that the plaintiff could have limited her evidence to former employees or sought permission to file evidence under seal.  The court concluded that because the plaintiff’s declaration “offer[ed] nothing more than anonymous hearsay statements that other employees suffered from the same time-shaving policy as did she,” it could not “conclude that the plaintiff is similarly situated to other [store] clerks on the basis of the conclusory and unsubstantiated statements in her declaration and complaint.”


In some jurisdictions, like the federal district courts in the Second Circuit, employers generally have achieved little success at defeating conditional certification in FLSA wage and hour actions.  For example, in a five-year period beginning in 2005 and ending in 2011, the United States District Court for the Eastern District of New York granted conditional certification in over 90% of its cases.  If plaintiffs obtain conditional certification in a FLSA action, litigation costs rise and the incentive for employers to settle is increased significantly.  Whenever possible and strategically desirable, employers want to avoid a collective action under the FLSA or, at the very least, pare down the size and scope of the proposed class of litigants, and they want to do it cost-effectively at the earliest possible stage of the litigation.  Although the plaintiff’s evidence was quite paltry, the Zheng case illustrates that employers can have success defeating conditional certification, even in the federal courts of the Second Circuit.