©2026 Seyfarth Shaw LLP Developments in Equal Pay Litigation 2026 | 43 deeply into fact or credibility determinations.289 While the court acknowledged that there was some authority to suggest that courts must engage in the establishment analysis at the conditional certification stage, it held that this was an issue of fact, and declined to do so. Instead, it limited its analysis to a review of the employer’s website, which suggested the employer had only one location in New York.290 The court ultimately granted conditional certification, but only with respect to the consultant position.291 Even if plaintiffs are successful in obtaining conditional certification of a collective action, that collective action may later be decertified if discovery reveals substantial differences among collective action members that make certification through trial untenable, or if compensation decisions are not as centralized as was claimed. In particular, if an employer can show that the relevant compensation decisions were made at the local level, or with significant input from local managers, which can sometimes defeat certification of sprawling collective actions that extend beyond a single establishment. For example, in O’Reilly v. Daugherty Systems, Inc.,292 the District Court for the Eastern District of Missouri conditionally certified a collective action of female consultants and support staff of an information technology consulting services company, who complained that they were paid less than similarly situated male employees performing equal work. On the strength of Plaintiffs’ evidence, the court concluded they had met their burden of providing “substantial allegations” that the employer “had a single decision, policy, or plan to pay female employees less than male employees doing the same work.”293 However, the court later decertified the collective action after discovery revealed the employees who opted into the case lacked the similarity necessary to proceed to trial as a collective action.294 The court found the evidence “does not support the existence of a single, FLSA-violating policy because [employer] did not impose a top-down compensation structure; rather, compensation decisions occurred at the branch level.”295 This was fatal to the plaintiffs’ attempt to proceed collectively because, without that, the alleged violations of law were too varied to form the basis of a collective action. “Plaintiffs’ compensation was determined by their supervisors in consultation with their branch managers, and the composition of the compensation depended on their department code, role, and title, which resulted in some plaintiffs receiving incentive bonuses while others could not. Thus, any purported compensation policy affected plaintiffs differently depending on role, title, location, etc.”296 Even within a single establishment, a compensation policy that is particularized with respect to each collective action member can defeat certification, because each plaintiff’s claims would rest on their particular circumstances rather than one overarching unlawful policy.297 In contrast, if plaintiffs can show 289 The court held: “[the employer’s] argument that Plaintiff cannot assert plausible EPA claims, ‘much less’ obtain conditional certification, fails,” because, “Courts do not weigh the merits of a plaintiff's claim at the conditional certification stage of EPA litigation, and “[employer] also cannot defeat Plaintiff's motion by attacking her credibility,” because, ”on a motion for conditional certification, the Court will not make credibility determinations.” Id. at *4. 290 Id. 291 Although the Plaintiff alleged she had conversations with other employees—including one who claimed to have access to the employer’s payroll data—they had not provided sufficient detail about those conversations to show they had personal knowledge of any position other than her own: “Plaintiff's use of ‘Consultants’ to refer to all levels of [the employer’s] employees, . . . also unnecessarily muddies the waters. It is unclear whether [Plaintiff’s] near weekly conversations about pay disparity were only with consultants or also with employees of other levels. It is similarly unclear whether the female principal with access to [employer’s] payroll data said that [employer] paid only female consultants less or all female employees less.” Id. at *5 (emphasis in original). 292 O’Reilly v. Daugherty Sys., Inc., No. 4:18-cv-01283 SRC, 2020 WL 1557174 (E.D. Mo. Mar. 31, 2020). 293 Id. at *3. Plaintiffs had presented the court with two declarations that alleged that the employer used a centralized decisionmaking process to set compensation for all employees, regardless of job title, salary grade, or geographic location. They had also presented an employee handbook and limited compensation data that showed that male employees were the top earners in some or all departments in the St. Louis, Atlanta, Minneapolis, Dallas, and Chicago branches. Id. at *2-3. 294 O’Reilly v. Daugherty Sys., Inc., No. 4:18-cv-01283 SRC, 2021 WL 4514293 (E.D. Mo. Sept. 30, 2021). 295 Id. at *7. 296 Id. Although the employer’s corporate leadership was involved in approving total salary adjustments for each branch, individual compensation decisions were the result of a collaboration between local branch managers and the employee's supervisors: “supervisors provide compensation recommendations to the branch managers, who can then approve the recommendation without corporate approval.” Id. 297 See, e.g., Bertroche v. Mercy Physician Assocs., Inc., No. 18-cv-59-CJW-KEM, 2019 WL 4307127, at *26-28 (N.D. Iowa Sept. 11, 2019) (granting the employer’s motion to decertify the collective action where discovery revealed that the employer’s compensation scheme was designed to account for each physician plaintiff’s different medical and business decisions, which would result in different total compensation amounts, and so plaintiffs and opt-ins could not be similarly situated to each other for purposes
RkJQdWJsaXNoZXIy OTkwMTQ4