SunTrust Mortgage Underwriters Overtime Misclassification

STATUS: Resolved

Along with our co-counsel, Nichols Kaster, LLP in San Francisco, California, Outten & Golden LLP represents a group of SunTrust mortgage underwriters in their claims that SunTrust misclassified them as exempt from the overtime protections of the Fair Labor Standards Act (FLSA) and the California Labor Code, and California’s Unfair Competition Law. Plaintiffs filed their class and collective action complaint in the U.S. District Court for the Northern District of California on April 8, 2010.

On November 17, 2010, Plaintiffs filed a motion asking the Court to conditionally certify a FLSA collective and to allow them to send notice to SunTrust mortgage underwriters nationwide that they can join the case and attempt to recover their unpaid overtime wages. Plaintiffs argued that all SunTrust mortgage underwriters performed the same primary duties – to review mortgage loan applications to ensure that they conformed to various detailed policies and guidelines. They did not determine which loan products the company offered and they were not involved in developing underwriting guidelines. Additionally, they were evaluated in part based on productivity and had to complete a certain number of files per day. SunTrust Mortgage underwriters did not create credit policy. They are reviewed, compared and contrasted to other mortgage underwriters on a production-based metric. Their performance was subject to review by quality control auditors. Under Davis v. J.P. Morgan Chase & Co., 587 F.3d 529 (2d Cir. 2009), Plaintiffs argued, they are all misclassified as exempt workers and entitled to unpaid overtime wages.

On February 18, 2011, the Court granted Plaintiffs’ motion for conditional certification of a nationwide FLSA collective of SunTrust mortgage underwriters, holding that “[a]t this initial stage, plaintiffs evidence is sufficient to support their allegations that they are similarly situated with respect to their FLSA claim.” The Court relied on the declarations of five employees who attested that their primary job duty was to review mortgage loan applications based on companywide guidelines and SunTrust’s company-wide job description: Underwriting is responsible for processes, procedures and controls to ensure strict adherence to underwriting credit policy and does not engage in credit policy overrides or the creation of credit policy. The Court ordered notice to be sent to Notice shall be sent “to prospective class members consisting of: all persons employed by SunTrust in the United States as a Mortgage Underwriter 1, Mortgage Underwriter 2, or Mortgage Underwriter 3 at any time between three years prior to the date of this Order and July 11, 2010.” Notice was sent to SunTrust mortgage underwriters nationwide on March 11, 2011. The parties are currently involved in discovery.

Please email Justin M. Swartz or call (212) 245-1000 for more information.

(*Prior results do not guarantee a similar outcome.)


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