Virginia Lawyers Weekly

In a suit for overtime pay under the Fair Labor Standards Act, an Alexandria U.S. District Court declines to conditionally certify a class of school board employees who provide security, athletic coaching and ticket-taking services at school athletic events.

While the 4th Circuit has not yet settled on a test for conditional certification in an FLSA action, the question arises with some regularity at the district level.

In this case, even if the court assumed that a group of similarly-situated potential plaintiffs exists, it would deny plaintiffs’ request for notice. The court finds that conditional certification is inappropriate because of the probable necessity of an individualized FLSA coverage determination for each member of the potential claim.

Each Fairfax County public school exercises substantial discretion over the athletic and other activity “supplements” paid to the “volunteers” who provide athletic coaching services. No county-wide guidelines enforce a uniform distribution of supplements or regulate the number of hours that employees can devote to coaching and other volunteer activities. And the number of hours that different coaches work varies widely between sports and coaches at different schools within the same sport. The amount of money that different coaches at different schools receive as a “supplement” – and the amount they receive per hour of coaching – also varies significantly.

Defendant school board submitted evidence showing that the stipend paid to coaches and the amounts paid to ticket-takers are determined locally, within each individual school. Similarly, the hours that coaches work are determined by the coaches themselves. As a result, the amount of money each coach is paid as a “stipend,” when computed as an hourly rate, varies widely between coaches. The hourly pay for coaching depends on the apportionment of the “supplement” between coaches and other athletic officials, and the amount of time a particular coach choose to devote to his or her coaching duties. The school board also has no input into selection of coaches. Likewise, ticket-takers are generally “volunteer” on an event-by-event basis, although practices vary between schools.

The court agrees with the school board: because the method by which coaches and ticket-takers are paid and the amount of money they are paid vary widely among individual schools, each FLSA claim will have to be evaluated on its own merits.

The court denies plaintiffs’ motion for notice to similarly situated employees.

Purdham v. Fairfax County Public Schools (Cacheris, J.) No. 1:09cv50, June 22, 2009; USDC at Alexandria, Va. VLW 009-3-351, 18 pp.

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