In Ribby v. Liberty Healthcare, a federal judge in Ohio granted the plaintiff's motion for "conditional certification" under the Fair Labor Standards Act ("FLSA"). The plaintiff in the case was a nurse who alleged that the defendant, Liberty Healthcare, automatically deducted 30 minutes from the hourly compensated RNs’, LPNs’, and STNAs’ pay each day regardless of whether or not they received a meal period or were required to perform work during their meal period.
As a result of this deduction, Liberty Healthcare failed to pay Plaintiff and other similarly situated RNs, LPNs, and STNAs for meal periods during which they performed work. Also as a result of this deduction, Liberty Healthcare failed to pay the plaintiff and other nurses substantial amounts of overtime.
In moving for conditional certification, the plaintiff only needed to show that she and the other nurses were similarly situated. This showing does not require much--generally, the plaintiff can meet his or her burden by submitting an affidavit saying that all of the employees were subject to the same unlawful policy as the plaintiff was. In this case, the court determined that the plaintiff and the other nurses are "similarly situated," and that the plaintiff is permitted to send notice of the case to the other nurses, informing them of their right to join the case as plaintiffs.
When, as here, a court grants conditional certification, the court will then order the defendant to turn over contact information for the other employees who are similarly situated to the plaintiff. The plaintiff may then send notice to these employees telling them about the case, and letting them know that they can join the case as plaintiffs.
Conditional certification under the FLSA is different from "class certification" in a class action. If conditional certification is granted, the statute of limitations continues to run on all employees until they join the case. In a class action, the statute of limitations generally stops running for all class members as soon as the case is filed.
Another key difference between an FLSA case and a traditional class action: when an employee joins an FLSA case, he or she is considered a party to the case. In a class action, however, the "absent" class members are not considered parties and only receive notification of major events such as the granting of class certification, settlement or trial.
Because the burden is so low for a plaintiff on conditional certification, employers don't always have a leg to stand on. One of the best arguments we have heard: a defendant's lawyer who argued that a motion for conditional certification should be denied because, well, we have to stop somewhere. The plaintiffs won that motion.