FLSA Collective Action Plaintiffs Entitled to Discovery of Similarly Situated Employees from the Outset

3.3.11    By Michael Ewing    Tags ,

A recent decision from the Eastern District of Tennessee has resolved some ambiguity regarding the proper scope of discovery when a plaintiff seeks to have her case certified as a collective action under the FLSA. In Burdine v. Covidien, 2011 WL 613247 (E.D. Tenn. Feb. 11, 2011), Plaintiff sued her former employer for unpaid overtime compensation, bringing the case on behalf of herself and the company’s “other pharmaceutical sales employees.” Discovery was accordingly bifurcated on the issue of certification to address, first, whether certification as a collective action was proper and, if so, how to best define the collective group or class. Id. at *1. In the Sixth Circuit, the first stage of that process is commonly referred to as “conditional certification,” and to obtain it, a plaintiff must make a “modest factual showing” that his/her position is “similar to the putative class members.” Id. (citing Comer v. Wal-Mart Stores, 454 F.3d 544, 546-47 (6th Cir. 2006)).

During that initial phase of discovery, Plaintiff sought the identities, contact information, job duties and payment method for every employee holding the same job title as her from 2007 to the present. The employer objected, saying such information was premature prior to the Court’s conditional certification of the case as a collective action. Plaintiff filed a Motion to Compel thereafter. Id.

In resolving the dispute, Magistrate Judge Lee of the Eastern District noted that, under Supreme Court precedent and Rule 26, the only binding rule applicable to Plaintiff’s request held that the identities of similarly-situated employees were “discoverable where the plaintiff shows ‘good cause’ for broad subject matter discovery or where, for some ‘other reason,’ it is relevant to a party’s claims or defenses.” Id. at *2. After citing a variety of cases where this “admittedly vague” rule had resulted in conflicting outcomes in similar circumstances, the Court held that, “in [the Sixth] circuit, where a plaintiff must make a factual showing in order qualify for conditional certification, a plaintiff must be allowed to discover the identities and job duties of her counterparts in order to determine whether they are, in fact, similarly situated. The necessity of this discovery establishes ‘good cause’ for ’subject matter’ discovery.” Id.

Based on this ruling, therefore, information about similarly situated employees - or, more accurately, “counterparts” of the plaintiff who are alleged to be similarly situated - is likely subject to discovery from the outset in potential collective actions under the FLSA.


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