FLSA Opt-Ins Become Party Plaintiffs Upon Filing Written Consents

In Mickles v. Country Club Inc., 2018 WL 1835316 (11th Cir. Apr. 18, 2018), the Eleventh Circuit held, considering a question of first impression in any circuit, that filing a written consent to proceed as a party plaintiff in an FLSA collective action confers party plaintiff status on the filer, even if no collective action is certified.

Mickles filed her complaint in April 2014, alleging that Country Club had improperly classified her and other similarly situated employees as independent contractors. Over the next few months, three other employees, Houston, McAllister, and Lemon, filed written consents to become plaintiffs. After that, discovery began and the district court entered a scheduling order requiring that all motions, with a few exceptions, be filed within 30 days of the beginning of discovery. The exceptions did not include motions to certify the collective action, and Mickles failed to file her motion for conditional certification until May 2015, well past the deadline. The district court denied the certification motion as untimely.

Country Club filed a motion to clarify the order denying conditional certification, asking whether Houston, McAllister, and Lemon, who had filed written consents back in 2014, were still parties to the case. The district court granted the motion to clarify and stated Houston, McAllister, and Lemon had never been party plaintiffs because they had never been adjudicated to be similarly situated to Mickles. Shortly thereafter, Mickles and Country Club settled Mickles’s claims, and the district court approved the settlement. Houston, McAllister, and Lemon filed a notice of appeal, seeking to appeal the order denying conditional certification, the clarification order, and the order approving the Mickles settlement.

The Eleventh Circuit, in an opinion written by Judge Black and joined by Judge Wilson and Judge Schlesinger visiting from the Middle District of Florida, first confirmed its appellate jurisdiction, in an analysis overlapping with its consideration of the merits. Houston, McAllister, and Lemon, the court held, were parties to the action with standing to appeal. The court noted that the FLSA provision providing the opt-in mechanism, 29 U.S.C. § 216(b), includes two requirements: that the named plaintiff file on behalf of herself and “other employees ‘similarly situated,’” which Mickles had done, and that other employees seeking to opt in file a “consent in writing to become . . . a party,” which Houston, McAllister, and Lemon had done. Acknowledging that Hipp v. Liberty National Life Insurance Co., 252 F.3d 1208 (11th Cir. 2001), contemplates a two-stage approach in making a similarly-situated determination—under the Hipp framework, conditional certification prompts notice to potential class members, which may be followed by a motion to decertify—the court noted that “nothing in our circuit precedent requires district courts to use this approach.” The Hipp approach is an “effective tool” for managing FLSA cases, but conditional certification is not necessary for an opt-in plaintiff to obtain party status: “[C]onditional certification is solely for notice purposes and does nothing to determine if a party becomes a plaintiff. . . . [T]he opt-in plaintiffs remain party plaintiffs until the district court determines they are not similarly situated and dismisses them.” So Houston, McAllister, and Lemon were parties with standing to appeal. And their appeal was timely, because the order approving the Mickles settlement was the only final order in the case; the clarification order did not dismiss the appellants’ claims but instead held that they had never been parties in the first place.

Having confirmed its jurisdiction, the court found no abuse of discretion in the district court’s denial of the motion for conditional certification as untimely. But the district court erred in holding in its clarification order that Houston, McAllister, and Lemon were not parties, and this had the effect, if the three were not entitled to have the statute of limitations tolled, of dismissing their claims with prejudice. The Eleventh Circuit vacated the clarification order and remanded the case with instructions to dismiss the appellants’ individual claims without prejudice or to go forward with their three individual claims. The court also held that the three “are entitled to statutory tolling of their claims beginning on the dates they filed their written consents.”

Posted by Valerie Sanders.

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