A federal judge has given preliminary approval to a class-action lawsuit against The Kroger Company seeking to allow salaried supervisors at King Soopers, a brand of Kroger, to recover overtime compensation they are allegedly owed.

U.S. District Court Chief Judge Philip A. Brimmer certified, as a class of plaintiffs, all current and former supervisors of King Soopers in Colorado since Feb. 22, 2018 who were classified as overtime-exempt. Brimmer ordered Kroger to provide the names and contact information of all workers in that category.

“Employees deserve to be compensated for the work they do,” said Andrew Swan of Leventhal Lewis Kuhn Taylor Swan PC, one of the attorneys involved with the litigation. “Like millions of other employees across the country, many of these King Soopers supervisors were misclassified as exempt from federal and state overtime laws. That allowed King Soopers to underpay these employees even as they worked long hours, risking their safety to make sure Coloradans had groceries in their homes during the pandemic.”

Tammy Kibler of Fountain, who was a supervisor at multiple King Soopers locations in Douglas County, filed a lawsuit against Kroger in February 2021, alleging that Kroger improperly classified some of its supervisory workers as exempt under the Fair Labor Standards Act. Exempt workers are not required to receive overtime pay after 40 hours.

Under the “executive” exemption, the U.S. Department of Labor notes that being salaried does not, by itself, make a supervisor exempt from overtime provisions. To qualify, the employee must have management as their primary duty, regularly direct the work of others, and have some authority over hiring and firing.

“Kroger’s Supervisors did not have the authority to hire or fire employees, nor did we have authority to exercise discretion or independent judgment as to matters of significance. We likewise were not involved in Kroger’s management,” Kibler declared in court filings. “In reality, and despite our titles, Supervisors’ essential job duties mirror those of the associates with whom we worked.”

Kibler added that she “routinely” worked in excess of 50 hours per week.

Kroger strenuously objected to certifying Kibler’s lawsuit as a class action, arguing she had not established that her experience was similar to other supervisors or that their pay structures were the same as hers.

“To say that Plaintiff has not met her burden of proving that collective treatment is appropriate here is nothing short of an epic understatement,” the company’s lawyers wrote.

Brimmer agreed last month to narrow the class of plaintiffs from all Kroger supervisors to just those in Colorado working for King Soopers and who were classified as exempt from overtime. Interested plaintiffs will be allowed to opt in to the litigation, with Kibler representing the class. Brimmer explained that he was employing a “lenient” standard at this stage in deciding to advance the class action litigation.

Kroger is also facing litigation specifically involving assistant store managers, who made similar allegations that Kroger improperly exempted them from overtime pay even though they performed many of the same duties as hourly workers – moving freight, stocking shelves and working as cashiers. 

Last January, U.S. District Court Judge Raymond P. Moore granted preliminary class certification in one such case involving King Soopers. He subsequently agreed to transfer the litigation to the Southern District of Ohio, where Kroger’s headquarters are located and where four similar lawsuits were pending. A jury trial is set for those cases in April 2023.

In January, following a strike at dozens of King Soopers locations in Colorado, union members ratified a new contract with the grocery chain that included raises and new worker protections. Kroger is the second-largest grocery vendor by revenue, after Walmart, and had a profit of $2.6 billion in 2020, according to The Cincinnati Enquirer.

Swan said the company has not expressed an interest in settling Kibler’s case out of court. Kroger did not immediately respond to a request for comment on Brimmer’s order.

Kibler’s lawsuit is seeking payment of overtime owed, a declaration that Kroger’s practices violate the Fair Labor Standards Act and an injunction requiring Kroger to cease its allegedly erroneous classification of supervisors.

The case is Kibler v. The Kroger Company et al.