FLSA Collective Actions: Fifth Circuit Finally Puts Horse Before The Cart

Federal courts have long struggled with the “unique species of group litigation” created by the Fair Labor Standards Act (“FLSA”). 7B Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1807 (2007). “Unlike other employment-discrimination class suits under Title VII or the Americans with Disabilities Act that are governed by Rule 23 [of the Federal Rules of Civil Procedure], actions on behalf of individuals claiming that employers violated the FLSA are brought as ‘collective actions’ under the statute.” Id.

The FLSA says an action may “be maintained against any employer … in any Federal or State court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated.” 29 U.S.C § 216(b) The Act further provides that “[n]o employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.” Id.

The requirement that potential plaintiffs “opt-in” to the collective action is the primary feature distinguishing FLSA collective actions from class actions subject to Rule 23. Rule 23 requires putative class members to opt out if they do not wish to be bound by the outcome of the class action. See Fed.R.Civ.P. 23(c)(2)(B)(“For any class certified under Rule 23(b)(3), the court must direct to class members the best notice practicable under the circumstances … that the court will exclude from the class any member who requests exclusion….”).

Unlike Rule 23, however, the FLSA does not set forth a procedure for litigating collective actions. It has thus been left up to the courts to adopt a procedure for such actions. Until the January 12, 2021 decision by the Fifth Circuit in Swales v. KLLM Transport Services, Inc., judicial efforts in this regard were problematic.


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