Burlington Coat Factory/courtesy photo

A federal judge has granted final certification to a collective action of Burlington Coat Factory assistant store managers in a Fair Labor Standards Act case.

Plaintiffs in the suit have proved they work under job conditions that are sufficiently uniform to overcome slight variations in their responsibilities, U.S. District Judge Joseph Rodriguez ruled Wednesday in granting certification. He rejected Burlington Coat Factory's claims that FLSA certification is precluded by variations in the way the assistant store managers carry out their duties.

The ruling is a setback for the law firms representing Burlington Coat Factory: Orrick, Herrington & Sutcliffe and Putney, Twombly, Hall & Hirson.

Final certification of a collective action under the FLSA requires a finding that members of the proposed collective action are similarly situated.

The suit argues that assistant store managers at Burlington Coat Factory stores spend most of their time working on the sales floor, running a cash register, stocking shelves, unloading trucks and cleaning restrooms, and that they have few, if any, managerial duties. But the company claims the workers are not entitled to overtime because they are managers.

The certification ruling follows a Sept. 20 decision in which Rodriguez struck part of an expert report submitted by Burlington that said the assistant store managers spent more than half their time on managerial duties. Rodriguez said the report by defense expert Robert Crandall relied too heavily on speculation in some of his conclusions that assistant store managers were engaging in monitoring and supervising other employees. Crandall, of Resolution Economics in Beverly Hills, California, who sent a team of observers into Burlington stores to record the type of tasks assistant store managers spent their time on, concluded that the group spent more than half their work time on managerial duties.

Rodriguez found some variation among Burlington's stores with regard to the extent to which assistant store managers exercised authority in the areas of hiring, firing, employee discipline and employee pay. But he found that variation was not sufficient to preclude certification.

"The common factor, which tilts in favor of finding the [assistant store managers] similarly situated, is that no [assistant store manager] had total authority over the processes, implementation of discipline, or the power to hire, fire, promote or adjust salary," Rodriguez wrote. "As a result, the slight variations in the roles [assistant store managers] played in human resourcing, as highlighted by the testimony Burlington offers, does not override the similarities of their limitations and lack of autonomy."

Rodriguez also cited other FLSA cases from New Jersey involving similar allegations against Staples and Office Depot in which final certification was granted based on working conditions that were comparable to the present case.

Michael Galpern of Javerbaum, Wurgaft, Hicks, Kahn, Wikstrom & Sinins in Voorhees, lead counsel for the plaintiffs, said the case will now focus on whether the plaintiffs made a prima facie showing that the company's classification of assistant store managers violates the FLSA.

"Our burden just got a lot easier" as a result of Rodriguez's ruling, said Galpern.

Burlington would have to decide whether to try the case or settle, said Galpern. Plaintiffs' lawyers have received opt-in notices from 569 assistant store managers at Burlington stores.

Galpern represents the plaintiffs along with Seth Lesser of Klafter, Olsen & Lesser, and James Barry of Locks Law Firm.

James McGrath III of Putney Twombly and Lynne Hermle of Orrick did not respond to requests for comment.