Defending Wage and Hour Collective Actions Under the FLSA: Overview

The federal Fair Labor Standards Act (FLSA) generally allows plaintiffs to assert claims individually or on behalf of similarly situated individuals in a collective action. The aggregate nature of FLSA collective actions means that even relatively small individual claims can add up to significant back pay awards. The procedure governing FLSA collective actions differs in significant ways from class actions under Federal Rule of Civil Procedure (FRCP) 23.

FLSA collective actions are some of the most expensive lawsuits employers can face. Nearly every aspect of an employer’s payroll and compensation practices is a potential source of liability, including procedures for clocking in and out, meal and rest breaks, calculating overtime compensation, and the classification of certain employees as exempt. Employers facing an FLSA collective action or hoping to avoid one should therefore understand the nature of collective actions and the issues likely to arise during litigation.

This Note provides an overview of the major issues employers face when defending federal wage and hour collective actions, including certification, decertification, and summary judgment motions, discovery issues, remedies, and settlement. This Note also discusses class actions based on violations of state wage and hour laws and limitations on class and collective actions.