Judge denies class certification in FLSA case against Crossmark Inc.

By Jon Campisi | Nov 28, 2012

A federal judge in Philadelphia has denied class certification in a Fair Labor Standards

Act case in which Crossmark Inc., a company that provides sales, retail, merchandising and inventory management services to retailers and manufacturers of consumer goods, is accused of failing to provide overtime pay to employees.

In a Nov. 14 order, U.S. District Judge Norma L. Shapiro, sitting in the Eastern District of Pennsylvania, denied a plaintiffs’ motion seeking nationwide class status in a federal lawsuit that was initiated against the Texas-based defendant in February 2011.

Shapiro also denied the plaintiffs’ motion for leave to amend their renewed Motion for Conditional Class Certification for the Purpose of Narrowing the Class, and a Motion to Compel Answers to Interrogatories and to Compel Production of Documents.

Finally, the judge’s ruling also dismisses all of the plaintiffs other than James Postiglione, who was the original plaintiff in the case.

The complaint was filed by several dozen current and former Crossmark employees who claimed the defendant violated the federal Fair Labor Standards Act by requiring employees to work off the clock without proper compensation.

Specifically, the plaintiffs alleged that the company has a nationwide policy to unlawfully deny wages to employees for work they performed on administrative tasks at the beginning and end of each day, and for work they performed at retail locations that exceeded Crossmark’s budgeted time limit.

The judge ultimately determined that the proposed plaintiffs in the case were not “similarly situated,” a legal requirement for class certification.

Shapiro wrote in her memorandum and order that the plaintiffs have not demonstrated a “factual nexus between the manner in which the employer’s alleged policy affected [them] and the manner in which it affected other employees.

“That is, they have failed to make any showing that the proposed class is ‘similarly situated’ to the named plaintiffs,” the judge wrote. “In fact, the named plaintiffs are not even all similarly situated relative to each other.”

Shapiro wrote that although the plaintiffs argued that there was a common unwritten policy that applied to the retail representatives, “their evidence suggests that there was no common policy at all.

“The disparity of the claims among the named plaintiffs, the deposition testimony of the employees, and the testimony of the one supervisor deposed make it more likely that any illegal overtime policies were implemented by individual supervisors,” the ruling states. “The 31 named plaintiffs who would be in the amended class work under 38 different supervisors in 25 different states. Despite bringing a sampling of named plaintiffs from across the country, Plaintiffs have not demonstrated the existence of a nationwide policy; they have only demonstrated the lack of any such common policy.”

Shapiro also wrote that the plaintiffs’ evidence lacks credibility, and that the “sheer number of affirmations does little to persuade the court in light of the many material inconsistencies exposed during the depositions.”

Lawyers with the labor and employment trial team at Fish & Richardson, who are representing Crossmark in the litigation, appeared to celebrate the judge’s denial of class certification.

“Today’s decision is a complete vindication of Crossmark’s pay practices,” Stephen Fox, a principal with the defense firm’s Dallas office, said in a statement. “Going from a class of 20,000 to a ‘class’ of one, this victory is not just a home run, it’s a grand slam.

“Crossmark is a great company, managed by great people who have great people working for them,” Fox continued. “It treats its employees fairly and pays them equitably.”

The latest decision represents the third time that Crossmark has successfully defended attempts at class certification in FLSA lawsuits, according to the defense firm.

Two similar past rulings occurred in New Jersey and Tennessee.

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