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This article is part of a three-part series discussing the ways that employers may defend against measures taken by employee-plaintiffs who sue their employers to bring in additional plaintiff-employees into the lawsuit.  Part one of this series defines and distinguishes between Fair Labor Standards Act (FLSA) collective actions and class action claims.  Part two describes how an employer may defend against an attempt to bring an FLSA collective action.  Part three describes how employers may counter an employee-plaintiff’s attempt to certify a class of employees for a class action suit.  Peter Mavrick is a Fort Lauderdale employment attorney who defends the interests of businesses and business owners in employment law disputes, including lawsuits demanding wages and damages from alleged employment discrimination or retaliation.

Employees suing for their wages may attempt to sue on behalf of both themselves and other similarly situated employees.  For claims under the FLSA, former employees sometimes file lawsuits seeking to sue on behalf of other employees as a “collective action.” In other words, the plaintiff seeks to bring other former or current employees into the lawsuit. For claims in other areas of law, such as under the Florida Minimum Wage Act, an employee may bring a “class action,” which is a process by which all similarly situated employees are included in the suit unless they choose to opt-out.  The collective action and class action lawsuits seek to join more employee-plaintiffs into a lawsuit than would have otherwise joined it without the certification of a class.   The more employees who are plaintiffs, the greater the exposure to the Florida business.   A Florida business and their owners are not defenseless against a collective or class action because the employer can demonstrate to the court that the collective or class actions are not proper.  The Mavrick Law Firm has successfully defended Florida businesses from their employees improperly bringing collective and class actions against them.

Both collective actions, under 29 U.S.C. 216(b), and class actions, under Fed.R.Civ.P. Rule 23(b)(3), give “plaintiffs the advantage of lower individual costs to vindicate rights by the pooling of resources” and allow for “efficient resolution in one proceeding of common issues of law and fact arising from the same alleged [unlawful] activity.” Hoffmann–La Roche, Inc. v. Sperling, 493 U.S. 165 (1989).  Both collective and class actions accomplish this through different means.  When a collective action is first certified under the FLSA, court allow the plaintiff-employee, under supervision of the Judge, to send to all potential members of the class an offer to opt-in to the litigation.  This obviously makes it more likely that employee-plaintiffs will join the lawsuit.  By contrast, in a Rule 23 “class action,” all qualifying persons automatically become members of the class unless they opt-out of the action.  See Fed.R.Civ.P. Rule 23(c)(2)(B)(v). As the federal Eleventh Circuit Court of Appeals, which governs federal court decisions in the State of Florida, explained in the case Calderone v. Scott, 838 F.3d 1101 (11th Cir. 2016), “[t]his ‘opt-out’ requirement is what makes a Rule 23(b)(3) class action a ‘fundamentally different creature’ than a § 216(b) collective action, which depends for its “existence … on the active participation of [class members].”

While the rules governing whether a case qualifies as a “class action” under Rule 23 or a “collective action” under the FLSA are different, both sets of rules fundamentally concern whether the claims shared by the class are similar enough to each other to qualify under their respective rules.  Generally, an employer can succeed in stopping certification of the class by proving that a case would require individual attention for each plaintiff as opposed to issues common to all members of the proposed class of plaintiffs.  As the relationship between an employer and its employees can uniquely vary between employee to employee, employers often may successfully challenge employee-plaintiffs’ attempt to certify a class as a collective action or a class action.  As the federal Eleventh Circuit explained in Hipp v. Liberty Nat. Life Ins. Co., 252 F.3d 1208 (11th Cir. 2001), “[t]he decision to create an opt-in class under § 216(b) [FLSA collective actions], like the decision on class certification under Rule 23, remains soundly within the discretion of the district court.”

While a Rule 23 class action is opt-out and a FLSA collective action is opt-in, they may both be brought in the same lawsuit under the same essential factual claims despite their difference in procedure.  Calderone v. Scott, 838 F.3d 1101 (11th Cir. 2016) (“A § 216(b) collective action and a state-law Rule 23(b)(3) class action may be maintained in the same proceeding”).  This is particularly more likely to happen in a minimum wage case, because the same underlying issue (allegedly not being paid the minimum wage for each hour of work) is covered by both the Florida Minimum Wage Act, which permits class actions, and the FLSA, which permits collective actions.  “Hybrid class action suits under Rule 23 (for state law minimum wages) and 29 U.S.C. § 216(b) (for overtime) may proceed without conflict.”  Bennett v. Hayes Robertson Group, Inc., 880 F. Supp. 2d 1270 (S.D. Fla. 2012).  “[C]laims subject to certification under § 216(b) may appropriately be brought in the same lawsuit as claims subject to certification under Rule 23 where […], the essential facts and issues regarding each set of claims are likely to be the same and proceedings are not likely to be rendered unduly burdensome by inclusion of both sets of claims.” Id.

Employee-plaintiffs may seek to bring in other employees and former employees into their lawsuit as plaintiffs through an attempt to certify a collective or class action.  Employers often have sufficient basis to challenge these attempts because there are facets of the employee-employer relationship which are often individual to the employee and the individual aspect of this relationship may persuade a court deny employee-plaintiffs’ attempt to certify a class.  By challenging these attempts to certify a class, an employer can significantly reduce their risk and exposure to more manageable levels.

Peter Mavrick is a Fort Lauderdale employment lawyer and a Miami employment lawyer who represents the interests of businesses and their owners.  This article does not serve as a substitute for legal advice tailored to a particular situation.

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