This week, New Jersey federal Judge William Martini granted final certification to a collective action against Office Depot on behalf of approximately 300 assistant store managers who claimed to have been denied overtime pay in violation of state and federal law.  Judge Martini also allowed the case to proceed as Rule 23 class action in three states, namely, Colorado, Maryland and Washington.

Plaintiffs worked as assistant store managers for Office Depot and alleged they were not paid the proper overtime compensation for hours worked in excess of 40 hours per week from the years 2005 to 2012.  The Company argued that Plaintiffs were paid overtime pay at the correct rate based on a fluctuating workweek plan which allowed overtime to be paid at the employee’s regular hourly rate, instead of the time-and-a-half rate.

Plaintiffs contended that the elements needed for the application of the fluctuating workweek plan were not met, such as the requirement of receiving a fixed weekly salary regardless of how many hours they worked.  The Court agreed.  The Company also argued that Plaintiffs were not “similarly situated” and explained that the degree in which assistant store managers disciplined and reviewed employees and participated in the hiring process varied greatly. However, Judge Martini ruled that these differences were outweighed by consistent testimony showing that the ultimate decision to hire employees was made by store managers, not assistant store managers, and rejected the Company’s claim that certification should not be granted due to variations in the amount of supervisory authority.

The Court concluded that the differences the Company highlighted are “not sufficiently material to preclude final certification” and ruled that assistant store managers are similarly situated for purposes of final certification under the Fair Labor Standards Act.  This ruling will allow Plaintiffs’ to proceed as a group in seeking unpaid overtime and Office Depot will have to decide whether to proceed to trial or settle the case.

This Firm will continue to monitor the developments in this case.