There has been a recent explosion of Fair Labor Standards Act (FLSA) and state wage and hour claims by groups of employees. Because the federal and state laws provide their own respective advantages to employees, these claims are increasingly being pursued together in a single lawsuit, as a “dual-filed” action, in federal court. In such dual-filed actions, employees bring the federal claims as an opt-in collective action under FLSA §16(b) and the state law claims as an opt-out class action under Federal Rule of Civil Procedure 23. However, federal courts remain split as to whether it is appropriate for them to exercise supplemental jurisdiction over the state law claims in such cases.
The primary source of this court split is whether the opt-in process for FLSA collective actions is compatible with certification of an opt-out Rule 23 class action involving state law wage claims. On Jan. 21, 2010, the U.S. Department of Labor (DOL) weighed in on this divide, filing an amicus brief in an appeal pending before the U.S. Court of Appeals for the Third Circuit. This month’s column addresses the current court split and the DOL’s recent position.
Jurisdiction Exercised
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