The Fair Labor Standards Act (FLSA), 29 U.S.C. § 201, et seq., governs multi-party plaintiff “collective” actions under the Age Discrimination in Employment Act, as well as federal claims involving a failure to pay minimum wages or overtime. These collective actions differ in several significant ways from class actions under Fed.R.Civ. P. 23. Not only must additional plaintiffs “opt-in” to participate, as opposed to “opt-out” if they do not wish to be bound, but there are different requirements concerning class certification, different case law concerning class discovery and other issues unique to collective actions.
The collective action is an important mechanism under the FLSA because it empowers a single employee, or just a few, to seek to recover sometimes relatively small amounts from the employer on behalf of themselves and other similarly situated employees. Typical claims include misclassification of employees as independent contractors, wrongfully treating nonexempt employees (those entitled to overtime) as exempt from the overtime laws and taking inappropriate deductions from wages. The number of collective actions filed under § 216(b) of the FLSA has increased significantly in recent years.
The Certification Process for a Collective Action
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