Employees Must ‘Consent’ To Join FLSA Cases

Lawsuits under the Fair Labor Standards Act (FLSA) are not handled pursuant to the normal class action rules used in federal court. As two Vallejo, California police officers learned the hard way, the FLSA’s class action rules are quite picky and demanding.

Wynathen Ketchum and Ana Menjivar were police officers assigned to the City of Vallejo’s Mounted Patrol Unit. Ketchum and Menjivar filed a lawsuit against the City, seeking to recover compensation under the FLSA for the time spent training and transporting Mounted Patrol Unit horses. Citing the FLSA’s class action rules, a federal court struck most of their claims.

The Court observed that FLSA class actions proceed as “collective actions” under Section 216(b) of the law. When a “collective action” is filed, “all plaintiffs, including named plaintiffs are required to file a consent to suit form with the court in which the action is brought. A collective action is not deemed commenced with respect to each individual plaintiff until his or her consent has been filed.”

While the two officers filed their lawsuit on June 1, 2005, by the time of the Court’s decision on October 15, 2007, neither had actually filed a consent to join the lawsuit. The officers argued that because only two of them were present in the lawsuit, their lawsuit was really an individual lawsuit and not a “collective action” under the FLSA.

The Court was not persuaded by the officers’ arguments. The Court noted that “the plain language of the complaint contradicts the officers’ assertion. The complaint contains an entire section entitled ‘Collective Action Allegations,’ which sets forth the basis by which plaintiffs, on their own behalf and ‘on behalf of all others similarly situated,’ seek to recover compensation for unpaid overtime under the FLSA. Because this action is a collective action, each plaintiff’s action commences on the date their consent to suit form is filed with the court.”

The only portion of the officers’ lawsuit that the Court left alive was a claim that the City acted willfully in violating the FLSA, and thus was subject to the FLSA’s three-year statute of limitation rules. Since the officers could immediately file consent to join the lawsuit and recover for a small portion of the time between two and three years in the past, the Court did not completely dismiss the lawsuit.

Ketchum v. City of Vallejo, 2007 WL 3010623 (E.D.Cal. 2007).

This article appears in the February 2008 issue