Have you been denied overtime, forced to work through your unpaid breaks, or required to hand your tips over to your employer? If so, or if you have been denied any other rights under the federal Fair Labor Standards Act (FLSA), you may have grounds for a wage and hour lawsuit against your employer. (For more information, see our Wage and Hour FAQ for Employees.)
Because most individual wage and hour claims involve fairly small amounts of money, however, it can be tough for a single employee to find a lawyer willing to take the case. That’s why the FLSA gives employees a tool to assert their rights as a group. Employees with similar claims can band together in one lawsuit, called a “collective action,” to sue their employer.
To bring a collective action together, the employees in the case must be "similarly situated." This means they must be subject to a common policy, plan, or design of their employer’s, even if they work in different company departments or locations. For example, a group of cashiers at a grocery chain might bring a collective action claiming that the employee handbook requires them to be at work 15 minutes before their paid shifts start, to put on their uniforms, restock and clean up their work stations, and count the money in their drawers. In this case, all of the employees are challenging the same practice followed in all store locations of not paying employees for their first 15 minutes of work each day. These employees are similarly situated under the FLSA and can likely file suit together.
You may have heard of a “class action,” which is another type of lawsuit in which a group of people with similar claims against an employer, company, or other entity sue together in a single action. For example, a group of terminated employees might sue their employer for age discrimination, claiming that the company’s layoff criteria unfairly targeted older workers. In a class action, all employees who are subject to the policy being challenged in the lawsuit will be bound by the judgment, unless they specifically “opt out” of the case by signing a document saying that they don't want to be part of the lawsuit. Because a class action, by default, adjudicates the rights of employees who haven’t opted out, the rules as to which employees can be included in a class and how much they must have in common are stricter.
Collective actions under the FLSA are like class actions, but they work a bit differently. In a collective action, the employees who want to be part of the lawsuit must affirmatively “opt in” by signing a document to that effect. Anyone who does not opt in won’t be part of the lawsuit and won’t share in the award if the lawsuit is successful. However, these employees can still bring their own claims against the employer individually, if they wish.
In a collective action case, the court generally decides early on whether to conditionally allow the case to proceed as a collective action. If the court agrees, the lawyers for the employees will generally notify all employees whose rights are affected and ask them to opt in. Once the opting-in process is complete, the lawyers will then argue over whether the case should actually proceed as a collective action or not.
If the court decides the case should not be a collective action, employees would have to bring their own lawsuits individually. That’s why employers typically oppose employees’ efforts to bring their case collectively: Very few employees are likely to press their claims individually.
Generally, there is a two-year time limit for filing a lawsuit under the FLSA (the time limit is three years if the employer willfully violated the law). In a collective action, an employee’s lawsuit starts when the employee opts into the case, not when the case is first filed. So, an employee must opt in to a collective lawsuit within two years of the alleged violations of the FLSA.
Participating in a collective action has its advantages, including efficiency, savings in money and time, and ease in finding a lawyer. But there are disadvantages, too. If you have particularly strong claims, for example, you might be able to settle with your employer quickly, rather than participating in a long, drawn-out court battle. If the claims of other employees aren’t strong enough, the entire case might be thrown out or lost at trial. This means you would lose your chance to assert your rights on your own.
To get a better idea of whether you should start or join a collective action, consult with an employment law attorney. If a group of employees is already represented by a lawyer in a collective action, you should talk to another lawyer to get an objective second opinion. Although you may have to pay for this consultation, it will help you figure out how best to protect your rights.
