Employees May Join FLSA Collective Action With Rule 23 Class Action in Same Proceeding

The Eleventh Circuit has joined the D.C., Second, Third, Seventh, and Ninth Circuits in holding that employees may bring a collective action against their employer under § 216(b) of the Fair Labor Standards Act of 1938 (“FLSA”) in the same proceeding in which they seek Rule 23(b) certification of state-law claims. Calderone v. Scott, 2016 WL 5403589 (11th Cir. Sept. 28, 2016).

The district court found FLSA’s § 216(b) and Fed. R. Civ. P. 23(b)(3) to be “mutually exclusive and irreconcilable” because § 216(b) requires plaintiffs to opt in to a class while Rule 23(b)(3) requires plaintiffs to opt out.

The Eleventh Circuit took note of this procedural difference between § 216(b) and Rule 23(b)(3) but ultimately determined that the difference was not “irreconcilable.” FLSA’s text does not indicate that a collective action cannot be maintained simultaneously with a class action.  In fact, the court pointed out that FLSA has an express savings clause clarifying that FLSA does not supplant state labor laws.  The court also cited the Advisory Committee on Civil Rules’ comments that make clear that § 216(b) was not meant to be affected by the opt-out requirement of Rule 23(b)(3).

Posted by Margaret Flatt.

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