Seyfarth Synopsis: Following an employer’s reduction-in-force that ultimately led to an ADEA collective action after several employees over 50 years old were terminated, a federal district court in Florida recently granted a motion to conditionally certify a collective action of employees who worked at the employer’s Tampa, Florida location, but denied a motion to certify a nationwide collective action.
When employers decide to undertake a reduction-in-force (“RIF”), one of the major pitfalls from a legal perspective involves mass terminations of employees over 40 years of age, leading to potential exposure under the Age Discrimination in Employment Act (“ADEA”). After multi-discipline design firm RS&H, Inc. (“RS&H”) terminated 23 employees during an RIF, a 53 year old terminated employee brought suit against RS&H under the ADEA, noting that five of the seven employees terminated at the Tampa location where he worked were over 50 years old. In Jones v. RS&H, Inc. , No. 8:17-CV-54-T-24, 2017 U.S. Dist. LEXIS 60088 (M.D. Fla. Apr. 20, 2017), after Plaintiff moved for conditional certification of a nationwide collective action of employees over 40 who were terminated in the RIF, Judge Susan C. Bucklew of the U.S. District Court for the Middle District of Florida granted the motion for conditional certification for employees who worked at the Tampa location, but denied conditional certification of a nationwide collective action.
While the Court’s grant of conditional certification should serve as a cautionary tale for employers who are considering mass layoffs that may include a significant proportion of employees over 40, the Court’s denial of conditional certification of a nationwide collective action provides insight as to how employers facing ADEA multi-party actions can attempt to minimize exposure.
Plaintiff worked for RS&H from 1991 through 2015. When RS&H terminated Plaintiff, it stated that his termination was part of an RIF. Id. at *1-2. After RS&H terminated 23 employees nationwide, including seven from its Tampa location, Plaintiff filed an EEOC charge alleging age discrimination. Plaintiff stated that he had more work than the projected staffing requirement, and thus there was no reason for his termination. He further alleged that RS&H rarely allowed non-officers to work until they retired. In addition, RS&H was alleged to have hired young employees, and then terminated older employees once the young employees were trained. According to Plaintiff, one RS&H supervisor commented just prior to the RIF that he had been informed that RS&H was looking to reduce staff, specifically older personnel. Plaintiff further alleged that RS&H agents often said, “young people are our future.” Id. at *2.
After being issued a notice of suit rights letter and thereafter bringing suit, Plaintiff sought to conditionally certify a nationwide collective action of former employees who were terminated from October 28, 2014 through August 24, 2015 (i.e., within 300 days prior to Plaintiff’s filing of his EEOC charge) and who were at least 40 years old at the time of their termination. Two opt-in Plaintiffs who also worked at the Tampa location and were terminated during the 2015 RIF filed affidavits in support of Plaintiff’s allegations of age discrimination. In opposition to the motion for conditional certification, RS&H argued that: (1) Plaintiff was not a proper representative because his ADEA claim was time-barred; (2) Plaintiff’s EEOC charge did not provide sufficient notice of claims from the proposed collective action; and (3) the scope of the proposed collective action was too large.
The Court’s Decision
The Court granted in part and denied in part Plaintiff’s motion for conditional certification. First, in support of its argument that conditional certification was not warranted since Plaintiff was not a proper representative, RS&H argued that Plaintiff’s suit was untimely because he filed his suit 95 days after the EEOC issued its notice of suit rights. Id. at *5-6. The Court rejected this argument, citing evidence submitted by Plaintiff’s counsel illustrating that it did not receive the notice of suit rights letter until over two weeks after it was stamped.
Next, RS&H argued that conditional certification was not warranted for the proposed nationwide collective action because Plaintiff’s EEOC charge did not give adequate notice that such claims were being asserted. Id. at *7. After examining Plaintiff’s EEOC charge, which indicated that “[o]n the day of my termination 5 of the 7 [Tampa, Florida] employees let go were over 50 and had at least 10 years with the company,” the Court found that Plaintiff’s EEOC charge could not be read to give notice that he was asserting claims on behalf of a nationwide group of employees. The Court agreed with RS&H that, at best, Plaintiff’s charge put RS&H and the EEOC on notice that Plaintiff may be pursuing age discrimination claims on behalf of himself and the four other employees terminated on the same day at his Tampa work location. Id. at *9-10. In addition, the Court found that the decision-maker who terminated Plaintiff and the two opt-ins was never involved in a decision to terminate any employee outside of the Tampa location. Accordingly, the Court declined to certify a nationwide collective action.
The Court then explained that to conditionally certify a collective action, (i) there must be other employees who desire to opt-in; and (ii) those employees must be similarly-situated to Plaintiff. Given that two former employees had already opted-in, and that three of the five individuals that are over 50 and were terminated during the June 2015 RIF wanted to pursue ADEA claims, the Court found that the first element was met. Regarding the similarly-situated element, the Court noted that while Plaintiff attempted to assert a company-wide pattern or practice of age discrimination claim, he did not show a sufficient factual basis on which a reasonable inference could be made that RS&H had a pattern or practice of discriminating against all employees at all locations based on their age. Id. at *15-16. Plaintiff offered no evidence that any employees outside of Tampa were interested in joining the lawsuit, nor did they identify any decision-makers outside of Tampa who allegedly discriminated on the basis of age during the RIF. The Court further opined that the evidence that Plaintiff submitted could only support his contention of a pattern or practice of age discrimination within the Tampa location. As such, the Court denied Plaintiff’s motion to conditionally certify a nationwide collective action of former employees over 40 who were terminated during the June 2015 RIF, but conditionally certified a collective action consisting of the five individuals that were terminated from the Tampa location.
Implications For Employers
While the Court’s grant of conditional certification should serve as an eye opener for employers considering RIFs that may include several employees over 40, the Court’s refusal to certify a nationwide collective action provides guidance for employers as to how to minimize potential RIF exposure. Here, the Court noted that Plaintiff’s EEOC charge did not identify any aggrieved individuals outside of the Tampa location, nor did it identify anyone involved in the termination decision-making process outside of Tampa. Employers facing motions for nationwide conditional certification in ADEA collective actions following RIFs should closely review the plaintiff’s EEOC charge to assess the sufficiency of nationwide allegations. Given the potentially substantial consequences of RIFs involving older workers, the best practice for employers would be to contact their employment law counsel before engaging in this process.