Developments in Equal Pay Litigation

20 | Developments in Equal Pay Litigation © 2021 Seyfarth Shaw LLP 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.” 137 “[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.” 138 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. For example, in O’Reilly v. Daugherty Systems, Inc. , 139 the District Court for the Eastern District of Missouri conditionally certified a collective action of female consultants and support staff of an information technology consulting services company who complained that they were paid less than similarly situated male employees performing equal work. The Court analyzed conditional certification under the lenient standard typically applied when the case is at a stage where the parties have not conducted substantial discovery. 140 Plaintiffs had presented the court with two declarations that alleged that the employer used a centralized decision-making process to set compensation for all employees, regardless of job title, salary grade, or geographic location. They had also presented an employee handbook and limited compensation data that showed that male employees were the top earners in some or all departments in the St. Louis, Atlanta, Minneapolis, Dallas, and Chicago branches. 141 On the strength of that evidence, the court concluded that the plaintiffs had met their burden of providing “substantial allegations” that the employer “had a single decision, policy, or plan to pay female employees less than male employees doing the same work.” 142 The court also noted that although the employer had presented some evidence that the employees had different job responsibilities and duties, that was not sufficient to overcome plaintiff’s allegations . 143 Accordingly, the court authorized plaintiffs to send notice to all female consultants and sales executives employed at the company for the last three years. And in Finefrock v. Five Guys Operations , 144 the District Court for the Middle District of Pennsylvania initially granted conditional certification of a collective action of female restaurant Assistant and General Managers. Defendant tried to defeat conditional certification by pointing to the fact that the EPA only addresses wage disparities among the same “establishment,” meaning a “distinct physical place of business rather than an entire business or ‘enterprise’ which may include several separate places of business.” 145 The court held that plaintiffs had provided a sufficient modest factual showing that the 137 Bouaphankeo 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)). 138 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.”). 139 O’Reilly v. Daugherty Sys., Inc. , No. 4:18-CV-01283 SRC, 2020 WL 1557174 (E.D. Mo. Mar. 31, 2020). 140 Id. at *2. 141 Id. at *2-3. 142 Id. at *3. 143 Id. 144 Finefrock v. Five Guys Operations, LLC , 344 F. Supp. 3d 783 (M.D. Pa. 2018). In this case, the employer used two processes for determining managers’ salaries. Id. at 786. An individual hired for an open position is paid the same salary as the person who previously held the position; if the company acquires a franchise store, then the managers at that store are hired by the employer at the same salary. Id. The District Manager sets salaries and raises with approval from the Area Manager, Director of Operations, and, eventually, the Vice President of Operations. Id. 145 Id. at 789 (quoting 29 C.F.R. § 1620.9(a).) See also Gambino v. City of St. Cloud , No. 6:18-CV-869-Orl-31TBS, 2018 WL 5621517, at *8 (M.D. Fla. Oct. 11, 2018) (holding that city employees worked within the same “establishment,” noting that the