Ascertaining the Scope of a Conditionally Certified Class in Texas

In Lopez v. Bombay Pizza Co., 2012 WL 5397192 (S.D. Tex., Nov. 5, 2012) the Court was faced with the issue of defining the scope of a conditionally certified class. In this case, a former cook at Bombay Pizza sued to collect on unpaid overtime wages under the Fair Labor Standards Act (FLSA). In doing so, Lopez moved for a conditional class certification of all current or former employees who also were not paid overtime wages. Lopez’s posited class standard was too overbroad, however, according to the Court. Lopez’s proposed class sought to include all cooks and “other nonexempt hourly employees.” The Government, on the other hand, sought to limit the class to just “cooks.” The court held that “a finding of similarity does not require a showing of identical duties and working conditions across the entire group.” However, the court stated that “a minimal showing that all members of the class are similarly situated in terms of (1) similar job requirements and (2) payment practice” was required.


Thus, the two essential requirements found by the Court in Lopez for establishing a conditionally certified class are (1) similar job requirements and (2) payment practice. In Lopez, those requirements manifested as individuals performing the job functions of cooks, and who were not paid overtime compensation.


Other cases have supported the requirements for conditional class certification, and refined the meaning of “similarly situated” employees. In Richardson v. Wells Fargo Bank, N.A., 2012 WL 334038 (S.D. Tex., Feb. 2, 2012) the Court noted that “there must be substantial allegations that potential members ‘were together the victims of a single decision, policy, or plan.’” The Court in Richardson established a two pronged analysis for determining whether to certify a conditional class. This analysis consisted of: (1) similarity in job duties, and (2) whether the employer maintained a nationwide policy or plan for payment methods. Again, as in Lopez, the court focused on (1) job duties and (2) payment practice.


In Andel v. Patterson-UTI Drilling Co., 2012 WL 531167 (S.D. Tex., Feb. 15, 2012). the Court took the analysis a step forward, and set forth a scenario in which a conditional classification for similarly situated employees would be defeated, for the purposes of establishing a collective action. The Andel Court noted that a collective action suit would be defeated if a plaintiff in the alleged class required individualized inquiries. In other words, if a plaintiff in a class requires inquiries into his claim that are unique from those of any other putative plaintiff, a collective action could not result. The Court stated that “if there are enough differences between each individual plaintiff that the court would still be required to conduct an individualized analysis of each putative plaintiff” and FLSA collective action could not exist.


Andel also carried on the analysis for similarly situated employees employed by the Courts in Lopez and Richardson. The Court required “substantial allegations that the putative class members were together the victims of a single decision, policy, or plan.” The Court went on to state that the two step approach (job duties and payment practice) established in Lusardi v. Xerox Corp., 118 F.R.D. 351, 359 (D.N.J. 1987) (as also adopted by Lopez and Richardson) was the majority approach. Specifically, the court noted that the Lusardi approach is “consistent with Fifth Circuit dicta, stating that the two-step approach is the typical manner in which…collective actions proceed.”


Substantial, recent, case law in the Fifth Circuit is adamantly in agreement that for a collective action to proceed, a showing must be made that the putative plaintiffs had similar job duties and payment practices. Additionally, if plaintiffs each require individual inquiries into their claim, a collective action is unsupported.


Bryant S. Banes
Managing Shareholder
Neel, Hooper & Banes, P.C.
Houston, Texas