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KPMG Audit Workers Get Conditional Cert. In OT Fight

Law360 - Elizabeth Bowen

A New York federal judge granted a bid for conditional collective action certification Tuesday in a case brought against KPMG LLP by ex-workers who claim the accounting firm misclassified thousands of current and former audit associates as exempt from federal overtime pay requirements.

U.S. District Judge Colleen McMahon signed off on a decision and order granting a motion for conditional certification from ex-KPMG audit associates and directing KPMG to fork over a computer-readable list of the names and contact information of all potential opt-ins.

The plaintiffs more than satisfied the Fair Labor Standards Act's minimal requirements for preliminary certification by showing that they and other employees are similarly situated, the order said.

In light of the fact that the accounting profession and audits are covered by professional and regulatory rules and standards, it would be “shocking” to learn that audit associates are not similarly situated in that they are constrained by uniform rules, the judge said.

“That uniformity does not mean audit associates are entitled to overtime; they may well be similarly situated professionals or similarly situated administrative employees," the order said. "But it does mean that they are similarly situated for FLSA purposes."

Though the issue of whether employees qualify as professionals or administrators presents a fact-specific inquiry, courts frequently find that it doesn't preclude conditional collective action certification, Judge McMahon wrote.

The plaintiffs and potential audit associate opt-ins appear to have similar educational backgrounds, and all the plaintiffs allege that they underwent uniform training, the decision said, pointing out that the plaintiffs had offered up declarations from six individuals who worked in six different states.

All audit associates performed the same or similar primary duties, the plaintiffs contended. Audit associates “primarily perform routine, low-level clerical and physical tasks,” according to the plaintiffs' April 6 memorandum in support of their motion for conditional certification.

While courts ordinarily put off merits discovery until the opt-in period wraps up, that won't happen in this case, Tuesday's ruling said. Judge McMahon ordered that discovery on the issue of why all audit associates are classified as exempt be conducted in expedited fashion “with an eye to having someone (probably plaintiffs) move for summary judgment no later than April 27, 2012.”

Outten & Golden LLP's Justin M. Swartz, an attorney for the plaintiffs, said Tuesday that it was encouraging that the court wanted to rule on that issue.

“We're thrilled with the ruling, as it will allow us to notify KPMG audit associates nationwide of their right to join the case and attempt to recover overtime wages,” Swartz said.

The case, originally filed Jan. 19, 2011, also asserted a claim under the New York Labor Law.

The plaintiffs are represented by Justin Swartz, Rachel Bien, Seth Marmin, Elizabeth Wagoner and Dana Sussman of Outten & Golden LLP and Gregg Shavitz, Keith Stern and Susan Stern of the Shavitz Law Group PA.