It is fairly rare for an appellate court to rule on a motion to certify an overtime case. But the Third Circuit recently did in Hargrove v. Sleepy’s LLC, No. 10-cv-01138, 2019 WL 8881823, at *5-7 (D.N.J. May 9, 2019). In Hargrove, the plaintiff sought to certify a proposed class of drivers who performed deliveries on a full-time basis using one truck for mattress retailer Sleepy’s LLC. The Court held that the class was not ascertainable. The Third Circuit reversed, holding that the district court “misapplied our ascertainability case law.” The Court found that the district court erred when it held that the Plaintiff was required to identify the class members at the certification stage. Instead, the Court found that “a plaintiff need not “be able to identify all class members at class certification— instead, a plaintiff need only show that class members can be identified.” The court found the plaintiff met that requirement, having submitted thousands of pages of contracts, driver rosters, security gate logs, and pay statements, as well as testimony from a dozen class members stating they were required to work exclusively for Sleepy’s full-time.
The district court focused on the employer’s lack of records that might easily identify class members. But the appellate court found that “where an employer’s lack of records makes it more difficult to ascertain members of an otherwise objectively verifiable class, the employees who make up that class should not bear the cost of the employer’s faulty record keeping.” If an employer were allowed to escape certification by citing faulty record-keeping, the Court reasoned, it would creat[e] an incentive for employers not to keep records and thus avoid potential lawsuits. We thus would be crafting a vast loophole to class certification; employers could simply argue that they believed the potential class members were not employees. This would lead to paradoxical outcomes.” As such, the court reversed the denial of the certification motion and remanded to the district court for further proceedings.
This opinion is unquestionably a victory for plaintiffs seeking certification of overtime claims. The appellate court is correct that employers should be encouraged to keep accurate records of its employees, and when they do not, the law should penalize, rather than reward, them. About the author: Josh Borsellino represents workers suing for overtime pay. If you have questions about overtime, call Josh at 817.908.9861 for a free consultation.