The Fair Labor Standards Act (FLSA) establishes minimum wage, overtime pay, recordkeeping, and youth employment standards affecting employees in the private sector and in Federal, State, and local governments. For the FLSA to apply, there must be an employment relationship between an employer and an employee.
In a lawsuit against an employer for claims pursuant to the FLSA, employees or former employees of a defendant may join as plaintiffs if they consent in writing and thereby “opt in.” The preliminary determination of whether an employee should be allowed to gather information from the employer and send notice of the action. At the preliminary stage, the plaintiff may seek “conditional certification.” At this point, the plaintiff’s burden is very low and will likely be granted because the employer can later file a motion for decertification if discovery reveals that certification was not appropriate. If the plaintiff can show that there are others that are “similarly situated,” he will be allowed to send notice to such individuals. Although the Eleventh Circuit has not provided a specific definition for “similarly situated,” the Court has made it clear that “similarly situated” includes more than just the mere facts of job duties and pay provisions. Instead, the court will consider job titles, if the potential plaintiffs worked at the same geographical location, the extent to which different time periods and different decision makers were involved, and whether the alleged treatment of each potential plaintiff is similar to that of the named plaintiffs.
If the plaintiff is allowed to send notice, the employer is only required to provide information on “similarly situated” employees for the past three (3) years because the longest applicable statute of limitations is three (3) years, which requires a finding of willful violations. Also, courts may limit notice to a particular geographical area. This includes a specific facility, terminal, office branch, etc. Notice should include information concerning any fees or advances a plaintiff would be obligated to pay; that the court has not expressed an opinion concerning the merits of FLSA claims; and that it is an action seeking overtime from a specific employer that they may join. In matters where the defendants are unable to provide plaintiffs with adequate information concerning former employees who were potential class members, notice via newspaper, radio and/or posts may be permitted.
Once discovery is complete, the employer has the right to file a motion for decertification, asserting that the individuals are not “similarly situated” and that the action should not be allowed to proceed to trial as a collective action. At this point, the plaintiff burden is much higher. However, it could be argued that the damage has been done because the plaintiff has been provided contact information of former and/or current employees who may have FLSA claims and may subject the employer to signification FLSA litigation whether proceeding as a collective action or individual claims.
