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Courts routinely note the lighter burden of proof for conditional certification of FLSA cases, but oftentimes seem to allow certification based on little or no proof at all.&nbsp; A recent case from the Eastern District of Arkansas reflects that at least some courts will hold the plaintiff to that lesser evidentiary standard. In <a href="https://employmentclassactionreport.bakerhostetlerblogs.com/wp-content/uploads/sites/8/2012/08/Farnsworth-v.-Welspun-Tubular-LLC.pdf">Farnsworth v. Welspun Tubular LLC.PDF</a>, Case No. 4:11-CV-00619-DPM (E.D. Ark. Aug. 16, 2012), six plaintiffs all worked in the same defendant and were reclassified from exempt to non-exempt by the employer.&nbsp; They brought suit based upon the logic that since their duties had not changed, and since the employer had reclassified them, they must have been misclassified to begin with.&nbsp; They sought to represent not only the employees in their department, but all salaried employees of the employer.&nbsp; In support of their motion for conditional certification, one of the named plaintiffs submitted a declaration asserting his belief that at least 45 other employees were similarly situated. The district court was unimpressed by this showing.&nbsp; Although it described the plaintiffs&rsquo; burden as &ldquo;modest&rdquo; and &ldquo;light&rdquo;, it found that the plaintiffs had failed to meet even that showing.&nbsp; In particular, the court found no sufficient evidence of &ldquo;an unlawful, companywide policy,&rdquo; quoting Saleen v. Waste Management, Inc., 649 F. Supp. 2d 937, 941 (D. Minn. 2009).&nbsp; Because the plaintiffs had failed to make the requisite showing, the court denied conditional certification. In another case, <a href="https://employmentclassactionreport.bakerhostetlerblogs.com/wp-content/uploads/sites/8/2012/08/Buckland-v.-Maxim-Healthcare-Services-Inc.pdf">Buckland v. Maxim Healthcare Services, Inc.pdf</a>, Case No. 2:11-cv-08414-JST-JEM (C.D. Cal. Aug. 27, 2012), a California district court similarly denied motions for both class certification under Federal Civil Rule 23 and section 16(b) of the FLSA for claims of alleged wage underpayments for a proposed class of nurses. The district court found that the plaintiffs failed to show commonality under Rule 23(a)(2) and also failed to meet the &ldquo;lenient&rdquo; standard for conditional certification because, apart from evidence relating to the named plaintiff, the court found insufficient proof of &ldquo;a single illegal policy, plan or decision.&rdquo;&nbsp; Rather, the court found that the plaintiffs had only shown potential problems with the named plaintiff&rsquo;s paychecks coupled with general criticism that the employer&rsquo;s system for tracking time for the class members &ldquo;wasn&rsquo;t working.&rdquo; Both cases reflect that while the showing for conditional certification may be &ldquo;modest,&rdquo; &ldquo;light,&rdquo; or &ldquo;lenient,&rdquo; it still requires proof of illegal conduct that applies across the entire class. The Bottom Line:&nbsp; Some courts will continue to deny conditional certification when the plaintiffs fail to make an adequate showing of a class-wide illegal policy.

Arkansas and California District Courts Deny Conditional Certification of Proposed FLSA Collective Class