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Note: What Have I Opted Myself Into? Resolving the Uncertain Status of Opt-In Plaintiffs Prior to Conditional Certification in Fair Labor Standards Act Litigation

By Carl Engstrom. Full text here.

Nearly all wage and hour cases are brought by multiple plaintiffs. This only makes sense—generally if one worker is not getting paid overtime, the same can be said of his or her co-workers. The effective functioning of the collective action device is therefore crucial to enforcing workers’ rights to a minimum wage and overtime pay. Yet collective actions under the Fair Labor Standards Act (FLSA), which sets the minimum wage and requires overtime pay nationwide, are governed by the statute itself rather than the Rule 23 class certification process.

Section 216(b) of the FLSA allows actions to be brought “on behalf of . . . other employees similarly situated” who consent to joining the suit. But the statute fails to define who is similarly situated, specify how that determination is made, or state whether such a determination is necessary for employees to become parties to the action. To fill in the first two of these three gaps in the statute, federal courts have developed a two-stage certification process to determine whether the employees are similarly situated. At the first stage, known as conditional certification, if the court makes a preliminary determination that the complaint has successfully defined a group of similarly situated employees, notice of the suit is sent to this class of employees, and they may join the action by returning a signed consent form to the court. The second stage applies a stricter evidentiary standard to this question and takes place after the close of discovery.

While the certification process helps to determine whether employees are similarly situated, it has failed to address whether employees have to wait for conditional certification before joining the suit, and what their status is if they are permitted to join the suit. Are they bound by the outcome if the case is dismissed with prejudice prior to conditional certification? Should they be required to submit to discovery? This failure has led to wildly inconsistent case law on a number of procedural questions regarding precertification opt-in plaintiffs (PreCOIs) that arise prior to conditional certification.

The Note argues that minimizing this procedural inconsistency requires defining the status of PreCOIs in terms of whether employees may opt into collective actions before conditional certification and what their status is should they do so. The Note fills this gap by forwarding three possible interpretations of the statute that both define the status of PreCOIs while providing a framework to address procedural questions that arise prior to conditional certification. The Note concludes that courts should adopt an interpretation under which potential plaintiffs may join the suit as provisional plaintiffs upon the filing of the complaint, yet are not “similarly situated,” and thus not parties to the suit, until the court grants conditional certification.