Developments In Equal Pay Litigation - 2022 Update

22 | Developments in Equal Pay Litigation © 2022 Seyfarth Shaw LLP plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.” 166 Although § 216(b) is silent as to how the collective action certification issue should be analyzed, most district courts use a two-step approach in analyzing collective action certification requests. 167 At the conditional certification stage, the court does not make any final decisions as to whether a collective action is appropriate. At the more onerous second-stage analysis, the court will ultimately account for all of the important facts learned through discovery that inform which putative plaintiffs, if any, are similarly situated to the existing plaintiffs. 168 The plaintiff’s burden at the conditional certification stage is quite low. A plaintiff need “merely provide some factual basis from which the court can determine if similarly situated potential plaintiffs exist.” 169 “[C]onditional certification in the first step requires nothing more than substantial allegations that the putative class members were together the victims of a single decision, policy or plan.” 170 If they succeed in doing so, the court will allow notice to be sent to each putative member of the collective action, which gives them an opportunity to join the lawsuit. The case then proceeds as a conditionally certified collective action, containing the named plaintiff(s) and all “opt-ins” who chose to join the case, until defendants are again given the opportunity to challenge certification at the decertification stage. Many employers think this two-stage process gives EPA plaintiffs a significant strategic advantage because the relatively lenient standard applied at the conditional certification stage provides an easier route to expand a case into a class-like proceeding. And as any employer who has been involved in employment class litigation knows, once a case is certified—even conditionally certified as a collective action—the burden, costs, and stakes of that litigation increase dramatically. The nature and extent of the evidence provided in support of conditional certification will often determine the outcome. But the burden is not high; just a few declarations from named or putative plaintiffs and a few policy documents will often suffice. For example, in Spatz v. Lee’s Summit R-7 School District , 171 a group of Field Technology Specialists, Elementary School Principals, and Elementary School Assistant Principals of a school district sought conditional certification of a collective of similarly situated female employees of the district. The complaint was later amended to include representative teacher plaintiffs, and the scope of the putative collective action was expanded to include teachers as well. The district argued that “multiple individualized decisions by a small group of supervisors does not suffice to prove a ‘single decision, policy, or plan,’” and that the plaintiffs had therefore failed to show that the claims of the putative collective action arise from a single policy that violated the EPA. 172 The court disagreed, noting the lenient standard applicable at the conditional certification stage: “the Court finds at this stage of the litigation, Technology Specialist and Elementary School Assistant Principal Plaintiffs have established a colorable basis for their claim that the putative class members were the victims of a single decision, policy or plan by the District. Plaintiffs' allegations and evidence indicate the District may have implemented a policy that uniformly results in female employees in these positions being paid less than similarly situated male employees in violation of the [EPA].” 173 In particular, the court relied on grievances filed by four elementary Principals and four salary review requests filed by Assistant Principals, as well as sworn affidavits from four of the plaintiffs. The court held that this was sufficient to show that “the District had a common policy of crediting education, experience, and tenure differently 166 Id. 167 See Knox v. John Varvatos Enters., Inc. , 282 F. Supp. 3d 644, 652-53 (S.D.N.Y. 2017) (citing Hoffmann–La Roche Inc. v. Sperling , 493 U.S. 165 (1989); Braunstein v. E. Photographic Labs., Inc. , 600 F.2d 335, 336 (2d Cir. 1978); Damassia v. Duane Reade, Inc ., 2006 WL 2853971, at *2 (S.D.N.Y. Oct. 5, 2006)). 168 Id. at 654. 169 Bouaphakeo v. Tyson Foods , 564 F. Supp. 2d 870, 892 (N.D. Iowa 2008) (quoting Salazar v. Agriprocessors, Inc. , No. 07-cv- 1006–LRR, 2008 WL 782803, at *5 (N.D. Iowa Mar. 17, 2008)). 170 Id. (quoting Young v. Cerner Corp ., 503 F. Supp. 2d 1226, 1229 (W.D. Mo. 2005)); see also Dietrich v. Liberty Square, L.L.C. , 230 F.R.D. 574, 577 (N.D. Iowa 2005) (“Courts have held that plaintiffs can meet this burden by making a modest factual showing sufficient to demonstrate that they and potential plaintiffs were victims of a common policy or plan that violated the law.”). 171 Spatz v. Lee’s Summit R-7 Sch. Dist. , No. 4:20-cv-448-RK, 2021 WL 5625408 (W.D. Mo. Nov. 30, 2021). 172 Id. at *3. 173 Id.