Overtime Attorney Blog

The United States District for the Middle District of Florida conditionally certified a class of loan officers in an FLSA action seeking unpaid overtime. The Court applied the lenient standard for notice stage certification and required the Plaintiffs to show (1) that there are other employees who desire to opt into the action, and (2) that those employees are similarly situated.

The Plaintiffs submitted nineteen declarations showing that the putative class members all engaged in cold calling to prospective customers, trying to sell loans to customers, and completing loan applications. The Defendants claimed that differences existed from branch to branch, including differences in job title and job duties. The Court found that such variations were factual issues that are not considered at the notice stage. The Court also disregarded the Defendants' assertion that decisions regarding classification of loan officers are made at the branch level, rather than the corporate level. The Florida Court noted that the existence of a common policy or plan is relevant to whether judicial economy would be served by a collective action and that such issues are more appropriately addressed at the decertification stage.

The Court, apparently sua sponte, noted that the class to be noticed was larger than Plaintiffs request for all “loan officers.” Therefore, the Court defined the class based on specific job duties rather than on job title.

The case is Vondriska v. Premier Mortgage Funding, Inc., 564 F.Supp.2d 1330(M.D.Fla. May 10, 2007).

In Kentish v. Madahcom, Inc., the Court considered whether plaintiff could state a cause of action for retaliation where defendant filed a counterclaim in retaliation for filing the FLSA suit. The Fourth Circuit Court of Appeals recently ruled such actions may be brought. See Darveau v. Detecon, Inc., 515 F.3d 334 (4th Cir.2008).

The District Court examined First Amendment concerns and Florida's protections of the right to bring suit. Based on this analysis, the Court denied plaintiff's motion to amend to add retaliation. The Court opines that Rule 11 would still provide a basis for awarding compensation for a baseless claim.

Given the conflict with the Fourth Circuit, it is not clear what weight should be given to this opinion in other contexts.

The full citation is: Kentish v. Madahcom, Inc., --- F.Supp.2d ----, 2008 WL 2796780 (M.D.Fla. July 6, 2008).

My search for new published overtime cases depends on the speed with which electronic indexing systems identify cases. The class certification order in Vondriska v. Premier Mortg. Funding, Inc. is over a year old, but it appeared today for the first time as a published case. As there are no other published FLSA cases today, Vondriska bears revisiting.

Vondriska was brought by friends of the firm Paul Lucas and Don Nichols. This case illustrates a straightforward application of the Lusardi standard for conditional class certification.

The case involves the alleged misclassification of loan officers. Defendant argued that the decision whether an employee is salary or hourly occurs on the branch office level. Thus the the employer contends there is no common plan at issue to justify certifying multiple branches. Branches also assigned different titles and slightly varying job duties. While the class consisted of loan officers paid by commission, the commissions varied from branch to branch.

The Court is unconvinced by defendant's argument. Minor variations in job duties are insufficient to defeat conditional class certification. The Court notes that the Eleventh Circuit does not require a common plan or scheme.

The Court also addressed issues of the proposed notice. Because potential class members had varying job titles, the Court authorized notice to those whose “primary duty was selling or originating loans inside the branch office.” The parties were ordered to confer further on the issue of the notice.

The full citation is Vondriska v. Premier Mortg. Funding, Inc., --- F.Supp.2d ----, 2007 WL 5314991 (M.D.Fla. May 10, 2007).