Opt-In Class Actions for Overtime Claims Under the Fair Labor Standards Act

One of the most powerful tools available to employees with overtime and wage claims is Section 216(b) of the Fair Labor Standards Act (FLSA) permitting opt-in class actions. Section 216(b) provides that an employee may maintain a court proceeding on behalf of himself and other, "similarly situated" employees. (See 29 U.S.C. § 216(b)). The similarly situated employees join the suit by filing their consents with the court. The availability of other employees to join the lawsuit merely by expressing their intention to join the proceedings is referred to as the FLSA's "opt in" procedure.

There are a variety of mechanisms for providing notice to potential, additional employees who may wish to join in the proceedings. Plaintiffs may publicize the lawsuit via the Internet. In the vast majority of cases, Plaintiffs frequently request that the Court issue an order directing that notice be provided to other current and former employees. Generally, this is done at an early stage, together with a motion by the Plaintiff's attorneys for the court to grant conditional class certification. Notably, at the stage of conditional certification, the plaintiff is not required to establish that his or her case will ultimately prevail on the merits. Eisen v. Carlisle & Jacqueline, 417 U.S. 157, 177 91974)

Typically, during a later stage of proceedings, the Court will consider a defendant-employer's motion to certify the subject class.

Numerosity is one of the factors that are considered by courts in assessing whether conditional class certification should be granted. Numerosity refers to whether there exist a sufficient number of class members to justify class status. Marisol A. v. Giuliani, 188 F.R.D. 310, 318 (2nd Cir. 1997)(numerosity presumed at 40). The other requirements for class certification include: (a) commonality (whether the plaintiffs' claims share common questions of fact or law); and (b) typicality (whether the class representatives' claims are typical of other class members).

The ability of employees to purse wage and hour claims en masse gives them leverage that would otherwise not be available to them as individual plaintiffs. It also makes such cases potentially much more lucrative for plaintiffs' attorneys. The standards for class certification are, undeniably, much more lenient for FLSA opt-in cases than in traditional class action lawsuits.

Employers' attorneys have complained that FLSA's two step certification procedures permit too many cases that involve individual, rather than collective issues, to proceed on a class basis. The concerns expressed by defendants' attorneys reflects the reality that the FLSA's opt-in provisions, and the liberal manner in which such provisions have been interpreted and applied by the District Courts, has been effectively seized upon by employees to pursue claims for unpaid overtime that may otherwise not have been substantial enough to justify the expense and effort of litigation in federal court.

Under the Fair Labor Standards Act, successful lawsuits for unpaid overtime and other wage violations can result in awards for employees that include attorneys' fees and liquidated damages of 100% of the amounts owed. Such claims can be substantial, particularly when pursued on behalf of many employees in a single action.