The FLSA permits employees with similar wage-and-hour claims to pursue relief together through a collective action. This procedure differs from a traditional Rule 23 class action because workers generally must affirmatively opt into an FLSA case to become participating plaintiffs.
When a Collective Action May Be Appropriate
Collective treatment may be appropriate when multiple employees were subject to a common pay practice, classification decision, timekeeping policy, or other policy that allegedly violated the FLSA. Examples include a company-wide exemption classification, automatic meal deductions, off-the-clock expectations, or common compensation formulas that omit overtime premiums.
Notice and Opt-In Process
Courts may authorize notice to potentially similarly situated employees under the applicable procedural standard. Employees who choose to participate typically file written consents. Because limitations periods can continue to run until an individual opts in, delay may affect the amount of wages recoverable.
Benefits and Challenges
Collective litigation can make it practical to pursue relatively modest individual wage claims and can develop common evidence efficiently. At the same time, employers may challenge whether the employees are sufficiently similar, whether individualized defenses predominate, or whether collective treatment should continue.
Damages
Participating employees may seek unpaid wages or overtime, liquidated damages, and other relief available under the FLSA. Prevailing employees may also recover reasonable attorneys' fees and costs.
Retaliation
Employers may not lawfully retaliate against employees because they join or participate in protected FLSA proceedings.