A TALE OF TWO POLICIES: THE LAWFULNESS OF THE COMPANY POLICY, AND ITS IMPACT IN THE CERTIFICATION INQUIRY

By Ashe, Rafuse & Hill, LLP

In the past two weeks, two district courts reached opposite conclusions on the issue of conditional certification in similar donning and doffing cases. In Helmert et al v. Butterball, LLC, No. 4:08CV00342 (JLH), Dkt # 109 (E.D. Ark. Dec. 15, 2009), a district court in Arkansas held that hourly production employees at Butterball’s turkey processing plants in Huntsville and Ozark, Arkansas were similarly situated, and granted conditional certification of the plaintiffs’ FLSA claims.[1] Two weeks prior, in Pacheco v. Boar’s Head Provisions Co., Inc., No. 1:09-cv-298, 2009 WL 4348801 (W.D. Mich. Dec. 3, 2009), a district court in Michigan held that hourly production employees at a Boar’s Head plant in Holland, Michigan were not similarly situated, and denied conditional certification of the plaintiffs’ donning and doffing FLSA claims.

There were several factual and procedural similarities between the two cases. In Butterball, the employees worked in various departments. All wore protective gear, but it varied based on the department. While some employees were paid based on a punch card system, most were paid with an automated system known as “gang time” or “line time.” Discovery in the case was divided into two phases, and the first phase (related to the issue of certification) was completed prior to the filing of plaintiffs’ motion for certification. Likewise, in Boar’s Head, the plaintiffs worked in various departments. All wore protective gear, which varied by department. Unlike the Butterball employees, everyone was paid through an automated system. The parties engaged in discovery on the certification issue before the court addressed plaintiffs’ motion for certification.

Despite these factual and procedural similarities, there was a difference between the policies of the two companies, which played a role in the different outcomes. Both courts applied the same standard—plaintiffs are similarly situated if they can make a modest factual showing that they and potential plaintiffs together were victims of a common policy or plan that violated the law. Butterball had a common policy “against compensating employees for the full amount of time” doffing and donning protective equipment. Boar’s Head also had a common policy, but it was facially lawful, and required employees to be paid for the full amount of time doffing and donning protective equipment.

A review of these two decisions demonstrates that the lawfulness of a policy may change the context of the similarly situated inquiry. In both cases, the employer cited factual differences among putative class members—differences that spoke to liability as well as damages—to argue against certification. In Butterball, however, the Court decided it did not need to address these differences, because class members were victims of the same unlawful policy. In Boar’s Head, the Court decided that a collective focus on the policy was impossible because the policy did not violate the law. Rather than focus on the policy, the court had to look at the factual situation of individual employees to make liability determinations.

Because the company’s written policy clearly requires that employees be paid for donning and doffing time, the Court cannot simply accept Plaintiffs’ allegation that there is a common or uniform practice of not paying employees for donning and doffing time. Thus, in order to determine whether this case is suited for resolution as a collective action, the Court must review the evidence to determine whether there is a factual basis for Plaintiffs’ claim that Defendant’s common or uniform practice was to not follow its formal, written policy.

When the focus is on “what happens in practice” rather than company policy, it is more difficult for plaintiffs to make a modest factual showing that all putative class members are victims of an unlawful policy or practice. Despite the multiple affidavits in Boar’s Head claiming plaintiffs were subjected to an illegal practice, the court held that declarations from other employees, submitted by the company, rebutted any allegations that the practice was “across-the-board” and affected all class members.

Common proof regarding the existence of a policy affecting all class members is much different than common proof regarding the divergence from policy in a way that affects all class members. Even in the lenient context of first stage conditional certification, the absence of an unlawful policy, which changes the focus from the employer to the employee, will make it more difficult for plaintiffs to satisfy their burden under 29 U.S.C. § 216(b).

Ashe Rafuse & Hill

1 The court denied Rule 23 class certification of the state law claims under the Minimum Wage Act of Arkansas. Plaintiffs sought injunctive relief, but the named plaintiffs, who were all former employees, lacked standing to pursue prospective relief. The court held their claims were not typical of, nor could they adequately represent, the class.

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