The federal Fair Labor Standards Act (FLSA) set the legal rules for wages and hours, including the minimum wage and overtime. If an employer violates employee rights under the FLSA, the employee can sue. Often, however, the employee's damages are relatively small: important to the employee, but perhaps not enough to interest a lawyer in taking the case or to be worth the time and trouble of pursuing without a lawyer. If a group of employees sue together, however, the math changes.
Collective Actions Under the FLSA
Under the FLSA, employees may bring a "collective action" against the employer, on behalf of themselves and other similarly situated employees. Other employees who want to join the lawsuit do so by "opting in" -- filing a form with the court, consenting to be represented in the lawsuit. Once the lawsuit is resolved, all employees who opted in are bound by the judgment, good or bad.
A collection action under the FLSA is different from other types of class actions brought under federal law. In a typical class action, employees who don't want to be part of the lawsuit have to "opt out," by affirmatively telling the court they don't want to be involved. Because the default is therefore that employees will be bound by the outcome of the case, Congress has made it more difficult to bring this type of class action (called "Rule 23" class actions because they are described in Rule 23 of the Federal Rules of Civil Procedure). Employees in a Rule 23 class action have to meet a four-part test to move forward as a group, including proving that there are common issues of law and fact among the employees, and that the claims of the named employees are typical of the claims of the group. Many lawsuits don't get past these hurdles, and a class is never certified by the court.
In a collection action under the FLSA, the employees only have to prove that other employees are similarly situated. This is an easier standard to meet. Because those other employees can decide for themselves whether they want to join the suit, courts don't have to be as concerned about making sure their interests are represented.
Under the FLSA, employees could bring a collective action over issues such as:
- failure to pay the minimum wage
- failure to pay overtime
- failure to pay tips
- misclassification of employees as exempt from the overtime rules, when in fact those employees should have received overtime
- failure to pay employees for all hours worked by, for example, not paying for travel time, on-call time, or time spent putting on and taking off protective gear, and
- requiring employees to work off the clock.
State Law Class Actions
Many states have their own wage and hour laws, and many provide additional employee protections. Employees who are bringing only state law claims must follow their state's rules for moving forward as a class action. Employees bringing claims under both federal and state law could try to join them together, although this isn't always successful because the rules are different for each.
Depending on state law, an action might be brought for:
- requiring employees to pay for their own uniforms
- requiring employees to provide their own work tools
- failing to pay the state minimum wage
- failing to pay overtime due under state law
- failing to pay final paychecks when they are due, or
- violating state law regarding payment of tips, among other things.
Get Legal Help
If you are contemplating a group lawsuit, you should speak to an employment lawyer right away. A lawyer can sort out whether you have valid claims against your employer, and whether those claims would best be raised in an individual complaint or lawsuit or as a group. A lawyer can also assess the chances of a court allowing the case to move forward as a class or collective action. Class and collection actions are very complicated, and you will definitely need a lawyer representing your group if you decide to proceed.