Certification of Call Center Class Given the Boot

On January 20, 2012, Magistrate Judge Paul E. Davison of the Southern District of New York recommended decertifying the off-the-clock FLSA claims of 40 current and former IBM call-center representatives in Seward v. IBM.  While noting “the scarcity of cases within the Second Circuit” addressing this type of motion, he relied heavily on Zivali v. AT&T Mobility, in which Judge Jed S. Rakoff of the same Court, eight months earlier, decertified off-the-clock claims of over 4,100 retail-store employees.

As the sole named plaintiff, Seward failed to meet his burden of proving he was similarly situated to the 39 opt-in plaintiffs in relation to the three key factors identified in Zivali: 

1. common or disparate factual and employment settings of the individual plaintiffs;
2. defenses available which appear common to all plaintiffs or individual to each plaintiff; and
3. fairness and procedural considerations.

To read this blog post click here