A federal judge in Trenton, New Jersey, granted conditional certification Thursday in a collective action against convenience store operator Wawa on behalf of assistant general managers on claims that they were wrongly denied overtime pay.
U.S. District Judge Peter Sheridan ruled that plaintiffs met the ”lenient burden” for conditional certification of a collective action under the Fair Labor Standards Act. He cited statements by the four named plaintiffs that they routinely work 50 to 60 hours per week and spend nearly all their time on nonmanagerial duties such as making sandwiches and operating cash registers.
But the ruling also limits the claim to roughly one year before Wawa’s December 2015 decision reclassifying assistant general managers as nonexempt employees, instead of the two years sought by the plaintiffs.
The award of conditional certification allows the plaintiffs to send court-approved notices to employees, who become parties to the collective action by filing opt-in notices with the court. Conditional certification also gives the parties the right to conduct discovery.
Wawa reclassified assistant general managers as nonexempt from overtime pay in December 2015 but the suit seeks to recover unpaid overtime on behalf of current and former employees at the company’s stores in New Jersey, Pennsylvania and Maryland before the policy was changed.
Plaintiffs sought a notice period dating back three years from the filing of the complaint, which would make the notice period run from Jan. 12, 2014, to Dec. 28, 2015, the day the policy was changed. But Sheridan sided with Wawa, which said the notice period dated back three years from the conditional certification order, Jan. 11, 2015. As a result, the notice period runs from Jan. 11, 2015 to Dec. 28, 2015.
Wawa claimed the named plaintiffs misrepresented their own job responsibilities and that they were not representative of all assistant general managers in the company. The company also asserted that some of the named plaintiffs were terminated for poor performance. In addition, the company asserted that duties for assistant general managers varied widely based on their experience level, their bosses’ preferences and the size and location of the store.
Sheridan rejected the plaintiffs’ bid for equitable tolling of the statute of limitations, finding that nothing in the record suggests the company misled or intimidated its employees to interfere with their rights to seek redress.
Sheridan also rejected the suggestion by Wawa’s counsel to limit the notice to the 15 locations where the six named plaintiffs have worked during their careers with the company. The judge found that the plaintiffs demonstrated that the allegations they raised are representative of the entire class.
The assistant general managers’ suit was filed in January 2017. Wawa also faces a similar suit filed in July 2017 on behalf of a class of general managers in training. That case is in discovery, but no certification has been granted.
In addition to the six named plaintiffs, another six assistant general managers have agreed to participate in the case as opt-in plaintiffs. Wawa has said that the notice provision in the case will include 1,550 assistant general managers.
The plaintiffs’ lawyers, Marc Hepworth of Hepworth, Gershbaum & Roth in New York and Union, and New Jersey solo practitioner Joseph Monaco III, did not return calls. Monaco also filed the manager-in-training suit.
Michael Puma at Morgan, Lewis & Bockius in Philadelphia, who represented Wawa, did not return a call.