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Judge Certifies Class Suing Express Retailer

(CN) - A federal judge granted conditional certification to a class that says that the retailer Express owes retail assistants for time spent delivering bank deposits.

Express is the sixth largest specialty clothing retailer in the United States, with 573 stores nationwide and more than $1 billion in annual sales.

Prior to Oct. 15, 2010, Express permitted some stores to deliver their bank deposits at night, rather than in the morning.

The policy read: "Stores with a bank depository in the mall may make their deposit at night. A few stores have to make deposits at locations which are a short drive from the mall. These deposits should only be made in the morning, never at night."

"For all deposits, at least two people must be present," the policy continued. "Even if your drop is in the mall, at least two associates must walk to the depository with the deposit discretely concealed in an Express poly bag."

Express changed its policy effective Oct. 15, 2010, requiring all bank deposits to be made in the morning.

Three former Express employees who were required to make bank deposits at night filed a suit, alleging that they were not paid for the time they spent delivering the stores' bank deposits after they clocked out at night.

U.S. District Judge James Holderman conditionally certified the class for certain claims last week.

He certified a conditional class of "all persons who worked for defendant as non-exempt employees without the United States at any time between July 28, 2008 and October 15, 2010 and who made a night bank deposit after clocking out for the day."

The court said it "agrees with Express that a potentially large group of Express employees worked at stores that never performed night bank deposits. Another potentially large group, although working at stores requiring some employees to perform night bank deposits, never performed night bank deposits themselves. Express's contentions on those points are irrelevant, however, because the proposed class is already limited to '[a]ll persons who worked for defendant ... and who made a night bank deposit.'" (Emphasis in original.)

Holderman noted substantial evidence that "employees at a broad selection of stores across the country" made night bank deposits after clocking out, without compensation.

"It is reasonable to assume that at least a large segment of employees making night bank deposits at other stores also did so after clocking out without compensation," Holderman wrote.

The court declined, however, to determine whether co-managers should be excluded from the proposed class.

Express says that these workers may be executive or administrative employees exempt from the overtime requirements of the Fair Labor Standards Act.

"As the plaintiffs point out, Express categorizes co-managers as nonexempt employees," Holderman wrote, saying he will look closer at this group in the next stage of the certification process.

Feb. 27, 2012, is the deadline for additional briefs "on the question of whether it is appropriate to send court-approved notice to a significantly larger group of individuals than have been conditionally certified in the proposed class."

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