Collective Action Under the Fair Labor Standards Act

The Fair Labor Standards Act (FLSA) is a remedial statute that protects the rights of workers and should not be applied narrowly. Tennessee Coal Iron & R. Co., v. Muscoda Local No. 123, 321 U.S. 590, 597-98 (1944).  The FLSA’s purpose is to “eliminate” unfair labor practices because their existence “burdens commerce,” “constitutes an unfair method of competition,” and “leads to labor disputes.”  29 U.S.C. § 202(a)(b). It prohibits “customs and contracts which allow an employer to claim all of an employee’s time while compensating him for only a part of it” and provides employees a private right of action to recover their unpaid wages. Tennessee Coal Iron & R. Co.,321 U.S. at 602.  

Sections 206 and 207 of the FLSA require that employers pay non-exempt, hourly employees overtime of at least one and one-half times the regular rate of pay for hours worked in excess of forty per week.  29 U.S.C. §§ 206, 207(a)(1).  When evaluating the number of hours worked, there are several considerations. First, the calculation of hours worked is not limited to the number of hours “clocked-in” and may include pre and post-shift responsibilities. Ramirez v. Ghilotti Bros. Inc., 941 F.Supp.2d 1197, 1201-06 (N.D. Cal. 2013); see also U.S. v. Ewald Iron Co., 67 F.Supp. 67, 73 (W.D. Ky. 1946). “Working time” also includes time which the employer designates for a meal or rest period when an employee does not actually take a break but instead continues to work. Hill v. RL Carriers, Inc.,  690 F.Supp.2d 1001, 1003, 1010 (N.D. Cal. 2010); F.W. Stock & Sons, Inc. v. Thompson, 194 F.2d 493, 496-97 (6th Cir. 1952). To ensure compliance with the FLSA, employers are required to create and maintain accurate records of all hours worked by employees.  29 U.S.C. §§ 211(c), 215(a)(5); 29 C.F.R. § 516.2(a)(7). An employer cannot shift its duty to maintain accurate records of hours worked to the employee.  29 U.S.C. § 211(c).

The FLSA’s “collective action” provision allows one or more employees to bring a collective action on “behalf of himself or themselves and other employees similarly situated.”  29 U.S.C. § 216(b). Although the FLSA does not explicitly define the term “similarly situated,” district courts have broad discretion to allow a party asserting FLSA claims on behalf of others to notify potential “similarly situated” plaintiffs that they may choose to “opt in” to the suit. See, e.g., Hoffman-La Roche, Inc., v. Sperling, 493 U.S. 165, 169 (1989).

Section 216(b) of the FLSA requires a person to affirmatively “opt in” to an FLSA action by filing a consent form with the court.  Because of this requirement, § 216(b) also authorizes a court to issue court-supervised notice to “similarly situated” employees informing them of the case and their right to opt-in.  Id. at 169. Unlike Rule 23 class actions, in § 216(b) collective actions, the statute of limitations for putative collective members is not tolled with the commencement of the action, but rather with the filing of an opt-in consent.  29 C.F.R. § 790.21(b)(2). Thus, court-authorized notice protects against “misleading communications” by the parties, resolves the parties’ disputes regarding the content of any notice, prevents the proliferation of multiple individual cases, assures that joinder of additional parties is accomplished properly and efficiently, and expedites resolution of the dispute.  Hoffman-La Roche, Inc., 493 U.S. at 171-72. 

While the Ninth Circuit has not formally prescribed the standard for managing FLSA collective actions, courts in this District have employed the now well-established, two-tiered approach to these cases. See Ramirez, 941 F.Supp.2d at 1203. First, the court makes an initial, conditional determination of whether plaintiffs are similarly situated, “deciding whether a collective action should be certified for the purpose of sending notice to potential class members.” Id. Then, once discovery is complete, the court makes a second determination as to the propriety and scope of the class. Id.

Only the first step is relevant to a motion for conditional certification and to facilitate notice. Hill,  690 F.Supp.2d at 1009. The first step requires the court to determine whether the plaintiffs are “similarly situated” and whether notice of the action should be given to potential opt-in plaintiffs.  Id. The determination is made based on a “fairly lenient standard” that typically results in certification.  Id. The court’s determination is based on plaintiffs’ allegations, supported by declarations or discovery, showing that the putative class members were together the victims of a single decision, policy, or plan. Harris v. Vector Mktg. Corp., 716 F.Supp.2d 835, 837(N.D. Cal. 2010). Plaintiffs need only show that their positions and claims are similar, not identical to other putative class members. Adams v. Inter-Con Sec. Sys., Inc., 242 F.R.D. 530, 536-38 (N.D. Cal. 2007). Further, “many courts have indicated that a plaintiff must simply show that ‘there is some factual basis beyond the mere averments in their complaint for the class allegations.’” Id. In fact, the court need not consider evidence provided by defendants.  Ramirez, 941 F.Supp.2d at 1203.

Low-wage hourly employees are precisely the type of workers that the FLSA’s collective action mechanism was designed to protect. Their individual claims are likely to be small, and they are unlikely to seek recovery on their own against a large corporation at the potential expense of their jobs. Hoffman-La Roche, Inc., 493 U.S. at 170.