Labor and Employment

Collective Actions under the FLSA

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The Fair Labor Standards Act (FLSA) provides standards for minimum wage, overtime pay and child labor provisions. Employees may be eligible to participate in an overtime collective action lawsuit if they have been unlawfully denied overtime wages. The FLSA collective action procedure permits the aggregation of hundreds or thousands of claims requiring only that the employees be "similarly situated."

Collective Action Different from Class Action

Collective actions share some characteristics with class actions, but are not the same. In FLSA cases, an employee must opt in, meaning that they must affirmatively sign a document stating that they wish to be a part of the lawsuit. In class actions, under Rule 23(b) of the Federal Rules of Civil Procedure, employees are presumed to be a part of the class and any employee who doesn't want to participate in the lawsuit must opt out. Class actions cannot be used to assert wage and hour claims brought under the FLSA but employees may bring an "opt in" or "collective action" under FLSA Section 216(b). One or more employees may maintain an action, on behalf of themselves and other employees who are similarly situated, to recover damages on any of the grounds available for individual FLSA relief. Employees who do not file a written consent are not bound by the outcome of the collective action and may file a subsequent private action. The FLSA collective action may be brought in either state or federal court.


Employees must be "similarly situated" to bring a collective action. Employees are "similarly situated" for purposes of FLSA collective wage suits if they are subject to a common policy, plan or design, that stretches across company departments or locations. If there is no commonality, there is no collectiveness and the lawsuit will be dismissed.

Exempt Employees Not Part of Collective Action

Anyone exempt from overtime wages under the FLSA may not join in a collective action lawsuit. Employees whose jobs are defined as executive, administrative, professional or outside sales are exempt from overtime pay if they meet all relevant requirements and earn above the minimum salary standard. Some computer-related professionals are also exempt from overtime law coverage so they may not join in any collective action lawsuit.

Non-Exempt Employees May Opt In to Collective Action

In addition to covering lower-income workers, FLSA also guarantees overtime rights to people in public service, law enforcement and first responder employment capacities. Any blue collar worker whose employment responsibilities include manual or physical labor are also guaranteed protection under FLSA law. All of these employees have the right to seek compensation for unlawfully denied overtime wages through an overtime collective action lawsuit.


Collective actions involve a "certification" process. The first "phase" of the collective action is the "conditional certification" phase. The case is filed and the court is asked to certify a "class" of employees who are similarly situated. In the second stage, after the "class" is conditionally certified, discovery, the information-gathering stage of a lawsuit, is conducted as to the named and opt-in plaintiffs. If the court finds a common policy unites the group of similarly situated employees and that the claims can be resolved with common evidence, the collective action moves forward.

Statute of Limitations

Generally, there is a two-year statute of limitations for FLSA overtime claims; an action for opt-in plaintiffs only begins when an employee signs a written consent to become a party and then files it with the court. Therefore, an individual's own lawsuit does not start until he or she signs the consent and opts in. Signed consents filed after the filing of the original complaint do not relate back to the date the complaint was filed. Thus, for each employee who opts into a case after the lawsuit is filed, the action is ''commenced'' for limitations purposes on the date on which the employee's written consent is filed with the court.

If you are think that you are eligible for overtime pay that has been unlawfully denied by your employer, you may wish to contact an experienced employment law attorney who can determine your eligibility in an overtime collective action lawsuit.

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