There is good news for hospital employers in one of the many recent FLSA collective actions brought against a hospital asserting claims for time allegedly worked during meal periods that were automatically deducted from pay. In White v. Baptist Memorial Health Care Corp., a federal district court in Tennessee decertified a collective action after the court found that the potential class, which had more than 200 opt-in plaintiffs with varied job duties in more than sixty different departments within the hospital, was too varied to be “similarly situated” for purposes of maintaining a collective action.

The decision is significant because it recognizes the importance of differences in “location, job duties, and supervision” in determining whether employees are similarly situated for purposes of a collective action under the FLSA. As the court emphasized, “differences in the opt-in Plaintiffs’ job duties are highly relevant to their claims that they worked during meal breaks without compensation because their job duties dictated whether and why they experienced missed or interrupted meal breaks.” This is often the case in hospitals, and should be a key factor in denying certification – even at the initial conditional certification stage – because it also drives the other factors courts consider in determining whether employees are similarly situated. Thus, in White, the court found that the disparate factual and employment settings would also hinder the judicial efficiencies that collective actions are intended to foster. “On balance,” the court concluded, “the differences among the Opt-in Plaintiffs outweigh the similarities of the practices to which they were allegedly subjected.”

Nevertheless, two recent decisions by district courts in Tennessee demonstrate that federal courts continue to use a “lenient standard” at the conditional certification stage under the FLSA and remain willing to conditionally certify collective actions for automatic meal break deductions even in circumstances where there is almost no evidence that the potential plaintiffs are similarly situated. In Carter v. Jackson-Madison County Hospital District, the court applied this low standard to certify a collective action based on the complaint allegations, an affidavit from the named plaintiff and affidavits and consent forms from two other employees who sought to join the suit. Similarly, in Miller v. Jackson, Tennessee Hospital Co., the district court applied a lenient standard and conditionally certified a collective group of hospital employees based only on the complaint allegations, the affidavit from the named plaintiff and two additional affidavits from other employees. In so doing, the Miller court rejected the defendants’ argument that the employees were not similarly situated because they worked for varying lengths of time, in different environments and incurred very different levels of overtime. In contrast to the White case, in Miller the court stated that such “individualized and distinct” work experiences were insufficient to dissuade the court from conditionally certifying the class. Will the court take a different view at the decertification stage?

There is no doubt that employers face difficulties convincing courts that conditional certification is inappropriate, but that alone is not enough to cede the issue to plaintiffs. Even at the conditional certification stage, employers, including hospital employers, should continue to emphasize, through affidavits, the disparate employment settings of potential plaintiffs. If conditional certification is nevertheless granted under a very lenient standard, it may later be decertified under the more rigorous and demanding inquiry at the decertification stage.

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