“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. Cases in the series can be found by issue and by judge at this link.

Trump Second Circuit judge Richard Sullivan tried to prevent more than 500 employees of Chipotle from suing collectively under the Fair Labor Standards Act (FLSA) to recover overtime pay that they contend the chain improperly denied them. The Second Circuit majority, including a judge nominated by George W. Bush, rejected that view and ruled that the employees could proceed as a group under the FLSA in its April 2020 decision in Scott v. Chipotle Mexican Grill, Inc.

Chipotle has claimed that employees working at the “Apprentice” level  are sometimes promoted to managerial positions, and therefore has classified Apprentices as workers not entitled to receive overtime pay, despite their long hours working overtime. Maxcimo Scott, who worked as a Chipotle Apprentice, and six other present and former Apprentices sued, claiming that Chipotle had misclassified them and improperly deprived them of overtime pay. Because the amounts at stake and the cost of litigation make it very difficult for workers to proceed individually in such cases, Scott and the other plaintiffs tried to sue on behalf of themselves and other Apprentices. They filed suit both as a class action, seeking to represent around 1,600 present and former Chipotle employees in six states. They also filed their suit as an “opt-in” collective action under FLSA, in which more than 500 present and former Chipotle Apprentices indicated they wanted to participate.

After conditionally certifying the collective action, however, a district court ruled that the case could not proceed either as a class or collective action and decertified the collective suit. Scott and the others appealed.

All three judges on the Second Circuit panel agreed that the case should not proceed as a class action because there were too many differences among the Apprentices and their circumstances. But two judges, including George W. Bush nominee Barrington Parker, agreed that the lower court had erred in dismissing the FLSA collective action, and reversed the district court.

The majority explained that the requirements for a collective action under the FLSA were deliberately less stringent than the requirements for maintaining a class action. Under relevant case law, they went on, named plaintiffs and opt-in plaintiffs are considered “similarly situated” for FLSA collective action purposes as long as they are “alike with respect to some material aspect of their litigation” claims under FLSA. The record below contained significant evidence of such similarities, the majority noted. They remanded the case to the district court to reconsider whether the collective action should proceed using the proper legal standard.

Trump judge Sullivan dissented from the part of the decision favoring the Chipotle workers. He accused the majority of ruling that a collective action could be maintained when the employees simply “share a single common issue” despite other dissimilarities, and claimed that the majority was announcing a “newly minted” standard.

The majority firmly rejected these assertions. The employees must share not just any similarity, but a similarity concerning “an issue of law or fact that is material to the disposition of the FLSA claims,” the majority explained. Their standard was not “newly minted,” the majority went on, but simply provided “clarity” on the difference between what is required for a collective action as opposed to a class action that is “plainly compelled by the statutory text and Supreme Court precedent” and has been “endorsed” by other appellate courts and ”lower courts within this Circuit.”

If it had been up to Sullivan, employees at Chipotle and other large corporations would have been unable to vindicate their rights to overtime pay through collective actions. Fortunately for employees at Chipotle and elsewhere, the Second Circuit majority rejected Sullivan’s clearly pro-corporate view and upheld their ability to file collective actions to recoup improperly denied overtime pay.