Generally speaking, certifying an off-the-clock wage and hour class action is quite difficult as the following two consolidated cases in the District Court of the Southern District of New York illustrate.  Personal bankers who sought to bring such an action against Wells Fargo and Wachovia Bank (acquired by Wells Fargo in 2008) were unable to show that they were subjected to a common policy of denying overtime pay or that classwide issues predominated, the district court of the SDNY held, rejecting their bid for Rule 23 certification of their New York Labor Law (“NYLL”) claims.  Fernandez et. al. v. Wells Fargo Bank, N.A., 12 Civ. 7193 (S.D.N.Y. Aug. 28, 2013) and Shutts et. al. v. Wachovia Corp. et. al., 12 Civ. 7194 (S.D.N.Y. Aug. 28, 2013).  Nor could they make the modest factual showing necessary to conditionally certify a Fair Labor Standards Act (“FLSA”) collective action.

Wells Fargo personal bankers (or “financial specialists,” as they were once called at Wachovia) alleged that their customer service and business generation responsibilities required them to work off-the-clock without overtime compensation.  The bankers alleged other unpaid off-the-clock responsibilities which included opening and closing bank branches on business days, working through meal breaks, and generating business by marketing within and outside bank branches.  These responsibilities were imposed as part of an alleged “dual edge” policy of limiting available overtime while also delegating onerous responsibilities that could not be met in a 40-hour workweek consequently resulting in the performance of uncompensated, off-the-clock work in order to complete assignments.  Plaintiffs alleged that they were ordered not to record overtime because management would not approve.  Plaintiffs claimed that these policies and practices were uniformly enforced throughout New York and for the FLSA claims, throughout the Northeast Region of Wells Fargo, which consisted of branches in New York, New Jersey, Connecticut, Pennsylvania, and Delaware.

No Commonality

The district court concluded that the plaintiffs failed to establish by a preponderance of the evidence that the personal bankers (or financial specialists) were subject to a common, state-wide company policy to limit recorded hours or require off-the-clock work.  Plaintiffs could not point to a meaningful directive or statement of company policy concerning off-the-clock work or any purported requirement to record hours worked.  Their anecdotal evidence was insufficient.  For example, they relied on evidence that predated the proposed class period and had no connection to the personal bankers (or financial specialists) working within the state.  They also relied on generic, vague, hearsay-laden declarations from three individual plaintiffs that carried little weight with the court.  For example, qualifying words like “typically,” “usually,” and “generally” permeated the plaintiffs’ assertions that they were denied pay for off-the-clock hours.  In the court’s view, such phrasing supported a finding that payment varied on a case-by-case, incident-by-incident basis, and was not determined by a single, common New York-wide policy.  All in all, the plaintiffs presented insufficient evidence to establish common NY policies as to compensation for certain tasks (opening and closing of banks, meal breaks, and marketing and business generation).

No Predominance

The district court also concluded that the plaintiffs had not established the preponderance requirement under Rule 23(b)(3).  “Without meaningful evidence of a New York-wide policy at Wachovia or Wells Fargo, a determination of liability turns on highly individualized, employee-by-employee analysis of what they were told by management and how any time-recording practices were applied,” the court wrote.  The court also determined that the plaintiffs had failed to propose a method for ascertaining damages on a class-wide basis, citing the US Supreme Court’s opinion in Comcast Corp. v. Behrend.  “With such qualified and vague statements concerning when they were denied overtime pay and when they were not, plaintiffs have not come forward with a meaningful approach to gauging damages on a class-wide basis.  In essence, plaintiffs posit that sometimes they received full and lawful compensation, and sometimes they did not.  They suggest no theory as to why these variations in compensation arose, make no concrete representations as to how often they occurred, and propose no class-wide metric for assessing damages.”

Conditional Certification Under The FLSA Denied

Plaintiffs also failed to make “modest factual showing” required to show that potential opt-in plaintiffs were victims of a common policy or plan to justify conditional certification under the FLSA.


Fortunately for employers, off-the-clock cases are difficult to certify for class litigation due to the inherently individualized nature of the claims.  Without a common company policy to point to, plaintiffs will be stuck litigating their wage and hour grievances on an individual basis.