In a recent decision, Morano v. Intercontinental Capital Group, 2012 WL 2952893, the Court dismissed the employees’ nationwide collective action against their employer because all the plaintiffs were not “similarly situated.”  The Court recommended that the employees propose workable classes and resubmit their collective action or that each individual employee bring their own lawsuit.

Plaintiffs in the case were loan officers at Intercontinental Capital Group, Inc. (defendants).  The employees brought their claims as a nationwide collective action claiming that their Intercontinental Capital Group, Inc. required them to work in excess of forty hours per week without paying them overtime compensation and/or minimum wages as required by federal and state law.

The Court conditionally certified a class consisting of “any employee who is or has been, at any time within the past three years, employed by Defendants as a loan officer.”  As a result, approximately 75 plaintiffs opted into the case. The plaintiffs worked in seven of Defendants’ branches in four different states.  After the discovery period, Defendants moved to decertify the class and dismiss the nationwide collective action.  Despite finding that the employer had a unified policy, plan or scheme of FLSA violations, the Court granted Defendants motion stating that Plaintiffs were not “similarly situated” and a collective action would be impracticable and inefficient.  The Court decided that the employees were not “similarly situated” based on these facts:  each branch location had a different branch manager who would hire the loan officers and instruct them on their work hours; Plaintiffs from the Pennsylvania and Melville branches did not provide evidence that suggested they worked over forty hours a week; Plaintiffs were paid two different ways, either commission-based or every two weeks; Defendants had a defense particular to only a subset of Plaintiffs who signed the employment agreement (Defendants could of asserted a breach of contract claim against Plaintiffs who signed the agreement because they potentially violated the employment agreement by either working more than 40 hours without written approval or by turning into inaccurate time sheets); some of the plaintiffs who signed the employment agreement, the agreement governed their entire employment,  while the other plaintiffs who signed it, the agreement governed a portion of their employment; and there were inconsistencies throughout the plaintiffs on how their time sheets were filled out.