In July of 2009 the United States District Court for the Western District of Kentucky heard a case involving a Kentucky overtime FLSA issue and how it pertains to certifying a class action. (See Oetinger v. First Residential Mortgage Network, Inc., (2009 WL 2162963 (W.D. Ky. 2009)). The plaintiffs in this Kentucky overtime FLSA case were former mortgage bankers who claimed they were not paid overtime work in violation of the FLSA. There were seven named plaintiffs who sought to represent all similarly situated mortgage bankers in a collective action. Id. Plaintiffs also alleged violation of the Kentucky Wages and Hours Act. Id.
The defendants moved to decertify the collective action under the FLSA claims and to deny class action certification of the state law claims. Id. The plaintiffs in this case were mortgage bankers also known as loan advisors who provided loan proposals for those refinancing an existing home or purchasing a new home. Id. These mortgage bankers, not all located in Louisville, Kentucky, dealt directly with customers to find a loan package best suited for their needs. Id. A mortgage bankers’ salary was primarily determined by commissions. Id.
In a class action lawsuit any employee may also bring suit on behalf of other employees so long as they have consented in writing and as long as the named plaintiff and the opt-in plaintiffs, those who have provided written consent, are similarly situated. Id. Similarly situated is not defined by the statute. Id. It is plaintiff’s burden to prove such. This is what has to be done in a Kentucky overtime FLSA class action lawsuit. The Kentucky overtime FLSA lawyer wants the class certification so that he does not have to handle each case individually which would take up a lot more time and resources.
Usually the court will examine collective actions in two stages. In a Kentucky overtime FLSA case the court will conditionally certify a collective action to allow the parties to take discovery. Id. “This preliminary certification requires little showing g by the plaintiff that she is similarly situate d to the putative class.” (cites omitted). Then after discovery in a Kentucky overtime FLSA case that is seeking certification of a class, the court will then look much closer at the similarly situated issue.
The court will look at 1, disparate factual and employment settings of the individual plaintiffs, 2, the various individual defenses available to the defendant, and 3, fairness and procedural considerations. Id. The Plaintiffs argued that they all performed the same duties. But, this was not the case. The court held that there would be no benefits to having the Kentucky overtime FLSA issues resolved via a class action. It would not help in lower the costs to the plaintiff in that they all did not have common issues of law and fact.
Next, as to the Kentucky Wages and Hours Act state law claims, plaintiffs must show: “1, the class is so numerous that joinder of all members is impracticable, 2, there are questions of law or fact common to the class, 3, the claims or defenses of the representative parties are typical of the claims or defenses of the class, and 4, the representative parties fairly and adequately protect the interest of the class.” (cites omitted). As to the first three requirements, the court held that the class certification was the right way to go. But, the final prong was not met. The plaintiffs who were all ‘former’ employees did not adequately represent the ‘current’ employees. Id. It was noted that no current employees elected to opt in to the FLSA claim brought by the plaintiffs. Thus, though each plaintiff had his or her own Kentucky overtime FLSA issue, and though the issue of whether or not the administrative exemption applied to mortgage bankers existed, in light of the fact hat the fourth and final element was not met, the court denied certification of the class. This Kentucky overtime FLSA lawyer handling this case was now going to have to try each overtime nonpayment of wages claim individually.
If you have been the subject of a Kentucky overtime FLSA case, please call and speak to a Kentucky overtime FLSA lawyer at the Law Offices of Andrew Alitowski, P.A. at 888-ASK-ANDREW (888-275-2637) or contact us. We are available 24 hours a day, 7 days a week.
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