10th Circuit denies motion to force trial court to adopt a class action approach
Though the “ad hoc” approach to joinder of underpaid Fair Labor Standards plaintiffs is the more common in practice (see, e.g., Sanchez v. Simply Right, Inc., 2017 U.S. Dist. LEXIS 77702 (D. Colo. Apr. 13, 2017)), the Tenth Circuit has held that a district court should not be compelled to adopt it
Turner v. Chipotle Mexican Grill, Inc., 123 F. Supp. 3d 1300, 1305 (D. Colo. 2015)In the district court, the plaintiff had alleged that Chipotle had a company-wide policy which unlawfully required non-exempt employees to work off the clock without pay, and sought an order of conditional class action certification and notice to all current and former (within three years) employees of their right to opt in to the lawsuit. The District Court for the District of Colorado certified a Fair Labor Standards Act collective action under 29 U.S.C.S. 216(b), which grants a private right of action for damages for the named plaintiff and other employees similarly situated.
The Tenth Circuit has held that there are three possible alternatives to how a collective action under the FLSA should be commenced: (1) the "ad hoc" approach, (2) the "Rule 23" approach, and (3) the "spurious approach." Thiessen v. Gen. Elec. Capital Corp., 267 F.3d 1095, 1102-1103 (10th Cir. 2001).
(1) the "ad hoc" approachIn the "ad hoc" approach, advocated by Chipotle and used by the district court in Sanchez v. Simply Right, Inc., 2017 U.S. Dist. LEXIS 77702 (D. Colo. Apr. 13, 2017), the trial court determines on a case-by-case basis whether plaintiffs are similarly situated. There are two stages: a "notice stage" determination of whether there is a substantial allegation that the other employees were the victims of a single decision, policy, or plan; after discovery or a motion to decertify the court would use the stricter stage, considering "(1) disparate factual and employment settings of the individual plaintiffs; (2) the various defenses available to defendant which appear to be individual to each plaintiff; (3) fairness and procedural considerations; and (4) whether plaintiffs made filings" required by the statute prior to filing the lawsuit (Vaszlavik v. Storage Tech. Corp., 175 F.R.D. 672, 678 (D. Colo. 1997)).
(2) the "Rule 23" approachAnother alternative is the "Rule 23" approach. Under it, the district court would determine whether Civ.R. 23(a)'s four prerequisites of numerosity, commonality, typicality, and adequacy of representation are met and whether the Civ.R. 23(b)(3) requirement that common questions of fact predominate in determining whether plaintiffs are similarly situated. Bayles v. American Med. Response of Colo., Inc., 950 F. Supp. 1053, 1060-1061 (D. Colo. 1996).
(3) the "spurious approachBut here the district court used the "spurious" approach, which incorporates the pre-1966 requirements of Rule 23 cases: 1) the character of the right sought to be enforced being several, 2) common questions of law or fact, and 3) a common relief. Thiessen v. Gen. Elec. Capital Corp., 267 F.3d 1095, 1105 (10th Cir. 2001). The district court in In re Chipotle Mexican Grill allowed joinder of 10,000 opt-in plaintiffs to the complaint alleging that Chipotle has a company-wide policy which unlawfully requires non-exempt employees to work off the clock without pay. 2017 U.S. App. LEXIS 8996 at *5.
Mandamus petition deniedChipotle sought a writ of mandamus, asking the 10th Circuit to order the district court to dismiss all the opt-in plaintiffs or to instruct it to permit discovery and allow Chipotle the opportunity to decertify the collective. The court denied the mandamus petition, noting that although it had previously upheld the use of the "ad hoc" approach, it had noted that in practice there was little difference in the various approaches. Thiessen v. Gen. Elec. Capital Corp., 267 F.3d 1095, 1105 (10th Cir. 2001). It now clearly held that the use of the "ad hoc" two-step approach was not mandatory, and that Chipotle did not have a clear and indisputable right to require the district court to use that approach. 2017 U.S. App. LEXIS 8996 at *7.
The Tenth Circuit further held that the "spurious" approach, in which the consenting opt-in plaintiffs must be winnowed out by the defendant, did not deprive Chipotle of the opportunity to assert defenses because there was no statutory requirement for an initial determination other than that the opt-in plaintiffs be similarly situated and noted that the district court's approach here had been explicitly adopted by the Eleventh Circuit in Grayson v. K Mart Corp., 79 F.3d 1086, 1096 (11th Cir. 1996).
There is thus no national or even circuit mandate for any one approach to determining who is a proper employee-plaintiff.