Collective Actions

Collective actions are lawsuits brought under certain federal statutes by employees pursuing claims on behalf of themselves and other employees who are similarly situated. Moeller Barbaree’s Atlanta attorneys have experience representing clients across the country in lawsuits involving collective action claims brought under the Fair Labor Standards Act (FLSA), the Age Discrimination in Employment Act (ADEA), and the Equal Pay Act (EPA). The collective action mechanism presents significant risks to employers in part because they are very different from traditional class actions.

Section 216(b) of the FLSA provides the basic mechanism for a collective action claim under these three statutes but does not define was “similarly situated” means. Most courts use a two-step process for determining whether claims can proceed collectively, an issue that Moeller Barbaree’s attorneys have addressed in numerous cases. At the first stage, called the “notice” stage, the court determines whether conditional certification is appropriate by evaluating whether the plaintiff or plaintiffs can make a modest initial showing that they are similarly situated to others in the proposed similarly situated group. If the court finds the plaintiff’s allegations support a showing that there are others who are similarly situated (whether in a specific work location, region, or even nationwide) and who are interested in pursuing the claim(s) at issue, a court-approved notice will be mailed to individuals in the conditionally-certified group advising each that she may file a consent to join form to be part of the action. In a collective action, the notice recipients must return the consent to join form, or “opt in,” in order to preserve the timeliness of their individual claims. If an individual receives notice of the opportunity to opt in to a collective action but chooses not to do so, she will keep her individual right to pursue a claim, but the statute of limitations will continue to run as to that claim.

Courts in Atlanta and other parts of the country routinely grant conditional certification of collective action claims because the plaintiff’s burden at the initial stage has been described by many courts as minimal. After conditional certification and typically a sixty to ninety-day period for individuals to opt in, the lawsuit will move into a discovery phase where the parties will attempt to develop evidence that the collective group is actually “similarly situated” for purposes of the wage and hour or age or gender-based wage discrimination claims at issue. The defendant employer will then have the opportunity to request that the collective action be decertified. At this second stage, courts conduct a more rigorous analysis of the evidence to determine whether similarities or differences exist among the opt ins pursuing the claims. If the collective action is decertified, the claims of the opt ins are usually dismissed without prejudice. If the motion for decertification is denied, a resolution by settlement or by a judgment entered by the court applies to all of the named plaintiff(s) and all opt-in plaintiffs.

Moeller Barbaree’s Atlanta attorneys represent clients in collective actions alleging a wide variety of wage and hour claims, as detailed here. Claims of age discrimination under the ADEA, outlined here, can also be pursued under 29 U.S.C. §216(b)’s collective action mechanism. The most common type of ADEA collective action claim involves an employer’s reduction in force, where one or more plaintiffs claim that they and other similarly situated individuals over the age of 40 were selected for termination on the basis of age discrimination. The Equal Pay Act, link, also allows claims to proceed as collective actions if a female plaintiff can show that there are other similarly situated females who are/were paid less than male comparators for the same or equivalent work within the meaning of the statute.

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