After the close of discovery, an employer may bring a motion to decertify an opt-in FLSA class on the ground that it fails to satisfy the “similarly situated” requirement in light of the evidence produced at that stage of the proceedings.  The motion is to be judged under standards similar to a summary judgment motion.  While there is no established definition of “similarly situated”—and the opinion eschews both the current majority and minority positions on the issue—it holds that the district court did not err in decertifying the class since the City showed that the claims were based on a vague “culture” of not reporting overtime supported only by vaguely reported experiences of individual employees, and nothing sufficient to suggest a uniform practice or policy dictated by management.

Ninth Circuit Court of Appeals (Berzon, J.); September 18, 2018; 2018 U.S. App. LEXIS 25951