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Balancing Your Rights as an Individual Plaintiff and Your Right To Represent a Class of Similarly Situated Persons

Does a rejection of an offer of judgment for complete relief render a plaintiff's claim moot for purposes of continuing to represent similarly situated employees in a collective action case pursuant to Section 216(b) of the Fair Labor Standards Act?

Section 216(b) of the Fair Labor Standards Act (the "FLSA") provides a private cause of action against an employer "by any one or more employees for and in behalf of himself or themselves and other employees similarly situated [emphasis added]." 29 U.S.C. §216(b). "[T]he purpose behind collective actions is to allow for a streamlined and efficient adjudication of the claims of similarly situated plaintiffs." Hoffman-LaRoche Inc. v. Sperling, 493 U.S. 165, 170–71 (1989). Unlike a class action, pursuant to Rule 23 of the Federal Rules of Civil Procedure, a collective action requires absent class members to affirmatively "opt in" to the case by filing a consent form with the court. If a person does not "opt in" then he or she is not bound by the judgment in the case. Conversely, in a Rule 23 class action, all persons who fall within the class definition are bound by the judgment in the case unless they affirmatively "opt out." Courts generally apply a two-stage process in certifying a collective action under Section 216(b) of the FLSA. The first stage is the "notice stage" where the court decides whether potential class members are similarly situated to the representative plaintiff(s) so that they should be notified of the action and given the opportunity to opt in. Section 216(b) of the FLSA authorizes a court to issue notices to "similarly situated" potential plaintiffs at an early stage of the case to ensure that they are aware of the case and to provide them the opportunity to opt in to the case. The second stage is usually conducted after discovery, where the court has more information to determine whether the case can continue as a collective action or whether to decertify the class and allow the plaintiff(s) to proceed on their individual claims.

In Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523 (U.S. 2013), the U.S. Supreme Court, addressed the question of whether a plaintiff's unpaid wage and overtime claim was moot where she brought a collective action case against her former employer and declined an offer of judgment for full relief prior to moving for "conditional certification" of the class. The plaintiff, who was employed by the defendant as a nurse, alleged that her former employer violated the FLSA by treating 30 minutes of every shift as an unpaid meal break even though she worked during that time. The former employer served the nurse with an offer of judgment, pursuant to Rule 68 of the Federal Rules of Civil Procedure, which was made in an attempt to offer complete relief for the unpaid wages the nurse claimed she was owed. Rule 68 of the Federal Rules of Civil Procedure allows a defendant to serve an offer of judgment on the plaintiff and makes the plaintiff who rejects the offer liable for the defendant's costs, after the offer was made, if the plaintiff fails to recover more than the offer at trial. As such, Rule 68 is meant to encourage settlement between the parties.

After the nurse let the offer expire her former employer argued that her case should be dismissed as moot because she no longer had a personal stake in the outcome of the case. The federal district court agreed and dismissed the nurse's case. The nurse appealed the decision to the United States Court of Appeals for the Third Circuit who reversed the decision and found that the former employer's attempt to "pick off" the named plaintiff with a Rule 68 offer prior to certification of the class would frustrate the goals of collective actions. The former employer appealed the Third Circuit's decision to the United States Supreme Court.

Because the nurse did not appeal the district court's conclusion, that the offer of judgment mooted her FLSA claim, the Supreme Court did not address that issue. Rather, it simply accepted the district court's conclusion that the offer of judgment mooted the nurse's individual FLSA claim because she failed to appeal that decision. As such, the only issue the Supreme Court addressed was whether the nurse could continue to represent the similarly situated individuals on whose behalf she brought the collective action.

In a 5-4 decision the Supreme Court held that the absence of any opt in plaintiffs, combined with the offer that fully satisfied the nurse's claim, deprived her of any personal stake in the case's outcome and reversed the Third Circuit's judgment. The Supreme Court based its decision on the fact that the class of "similarly situated" persons had not yet been certified as a class. Rather, when the offer of judgment was made and expired, the nurse had not yet moved for conditional certification. But even if the collective class was conditionally certified, the Supreme Court reasoned that "conditional certification" does not produce a class with an independent legal status or join additional parties to the action. In this regard, the Court distinguished collective actions under the FLSA from a Rule 23 Class action insofar as absent class members acquire legal status once a Rule 23 class action is certified as a class. In contrast, the sole consequence of conditional certification is the sending out of court-approved notice to employees who then become parties to the collective action by filing written consent forms with the court pursuant to Section 216(b) of the FLSA. As such, the Supreme Court reasoned that without an independent legal status there is no live controversy.

Still unresolved by the Supreme Court's holding in Genesis is whether the rejection of an offer for full relief by the named plaintiff(s) in a collective action renders their FLSA claim moot. The Supreme Court did not address that question because the nurse in Genesis conceded that her claim was moot once the offer of judgment was made, affording her complete relief, even though she argued that she could continue to represent the collective class. The dissenting opinion in Genesis, written by Justice Elena Kagan, argued that an unaccepted offer of judgment cannot moot a case as it is a legal nullity with no operative effect. The dissent chastised the majority for failing to address the issue of whether an unaccepted settlement offer moots an individual FLSA claim rather than assuming that it does. The dissent further explained that a court cannot enter an unwanted judgment for a plaintiff on his or her individual claim in a collective action under the FLSA because that would frustrate Congress's decision to give FLSA plaintiffs the opportunity to proceed collectively. Rather, the dissenting justices explained that it is the plaintiff's choice, not the defendant's or the court's, whether satisfaction of his or her individual claim, without redress of the classwide allegations, are sufficient to end the lawsuit.

Contact our FLSA Lawyer

Because the law is still unsettled with regard to whether an unaccepted offer of judgment for full relief moots the plaintiff's claim in a collective action more litigation over this issue is anticipated. If you believe that you are owed unpaid wages, unpaid minimum wages, or unpaid overtime wages, contact the experienced Orlando labor and employment attorneys at J. Allen Law P.L. who will guide you through the litigation process and fight to recover the wages that you are owed. You can reach us at (407) 205-2330 or fill out the online form provided at the top of this page and our FLSA violation attorney will contact you shortly. Your privacy is important to us and we will keep your information confidential.


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