The Fair Labor Standards Act, 29 USC 216(b), provides the basis for proceeding as a collective action. In particular the relevant language in §216(b) provides that:

[an FLSA action] may be maintained against any employer in any Federal or State Court of competent jurisdiction by any one or more employees for and on behalf of himself or themselves and other employees similarly situated. No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which the action is brought. (Emphasis added.)

It is under this section which collective actions under the FLSA must proceed. If it is determined that plaintiff and others are “similarly situated,” as required by § 216(b), a notice is sent out and potential collective action members can decide whether to opt into the case. This is another significant difference between FLSA collective actions and FRCP 23 class actions. The former requires individuals to “opt in” to the case by affirmatively filing a consent form. Normally FRCP 23 class actions are “opt out” actions where you are in the case unless you affirmatively opt out.

Although § 216(b) does not mention a certification process courts have repeatedly used this terminology in dealing with proposed FLSA collective actions.

(a) The Filing of a Consent Form
Under the jurisprudence interpreting § 216(b) the courts have required that each named plaintiff affirmatively indicate, by filing a consent form, that they wish the matter to proceed as a collective action on behalf of those similarly situated.

This requirement comes directly from § 216(b) which provides that:

. . . No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which the action is brought.

Absent the filing of a consent form consenting to proceed as a collective action it is an individual action only.

(b) It is not interrupted until the potential collective action member affirmatively opt ins.
Because the FLSA is, under § 216(b), an “opt-in” action instead of an “opt-out” action the statute of limitation period, is not interrupted for potential collective action members by the mere filing of the
lawsuit by the named plaintiffs. Under the Patal to Portal Act it provides as follows:

In determining when an action is commenced [an action] . . . shall be considered to be commenced on the date when the complaint is filed; except that in the case of a collective or class action . . . , it shall be considered to be commenced in the case of any individual claimant – (a) on the date when the complaint is filed, if he is specifically named as a party plaintiff in the complaint and his written consent to become a party plaintiff is filed on such a date . . . ; or (b) if such written consent was not so filed . . . – on the subsequent date on which such written consent is filed in the court in which the action was commenced. (Emphasis added.)

In commenting on this language, the courts have routinely held that the statute of limitations continues to run against potential collective action members until they affirmatively opt into the matter by individually filing a written consent form.

(c) Can the named plaintiffs in a collective action conceal their identities?
In Does I THRU XXIII vs. Advanced Textile Corporation, 214 F.3d 1058 (9th Cir. 2000) the Ninth Circuit dealt with the unique question of whether or not named plaintiffs in a collective action can conceal their identity such that their current employer does not know who filed suit. The District Court dismissed the anonymously filed complaint but allowed time for an amendment revealing the plaintiffs’ identity. The Ninth Circuit held that the district court abused its discretion and posed the following question as the one before it:

There are at least four other appellate decisions on this issue. See M. M. v. Zavaras, 139 F.3d 798, 803 (10th Cir. 1998); James v. Jacobson, 6 F.3d 233, 238 (4th Cir. 1993); Doe v. Frank, 951 F.2d 320, 323-324 (11th Cir. 1992); Doe v. Stegall, 653 F.2d 180, 186 (5th Cir. 1981). All reach a similar result. Consequently, at least where there is the very real potential for retaliation, plaintiffs may, prior to certification, remain anonymous.

(d) The Test for Being Similarly Situated Under 29 USC §216(b)
As previously noted a § 216(b) collective action may proceed on behalf of those individuals who are similarly situated to the named plaintiffs. The courts have not been uniform in their approach to what a plaintiff must prove in order to carry the burden of proving that others are “similarly situated” to him/her as required by §216(b). There are four different approaches that have been taken by courts in defining “similarly situated” under 29 USC 216(b):

The courts in the Fifth Circuit that have addressed the issue have generally focused on the fourth test. In Crain v. Helmerich & Payne, 1992 WL 91946 (E.D. La. 1992) the court gave more detail on the plaintiff’s burden of proof, regarding the issue of similarly situated status, writing:

In Crain, supra, plaintiffs alleged entitlement to unpaid overtime for participation in work-related activities on offshore rigs. The plaintiffs held different jobs but were subject to the same policy concerning participation in the work activities. The court dismissed the claim that different jobs meant similarly situated writing:

Similarly situated does not mean identically situated. Id. at p.3

This is the consensus among the courts addressing the question. As a result, similarly situated, does not mean identically situated.

In contrast in Donihoo v. Dallas Airmotive, Inc. 1998 WL 91256 (N.D. Tex. 1998) the court dealt with the issue of whether to certify a collective action concerning misclassification of employees in different jobs as exempt under the FLSA and wrote:

For most of these people, there must be an individual determination about whether the particular employee is properly classified as exempt. In deciding whether an employee fits into one of the many exempt categories delineated in the FLSA, the Court must conduct an inquiry into the employee’s specific job duties. Such as inquiry is not appropriate in a class lawsuit under § 216(b).

This type of job by job, employee by employee, individualized inquiry to make the predicate determination of exempt or non-exempt status, is the type of analysis necessary to defeat a plaintiff’s claim of similarly situated states.

IS THE CERTIFICATION PROCESS A TWO STEP DANCE?
There is a two-step approach which has been increasingly applied to the FLSA , with respect to certification. First, the Court determines whether a collective action should be certified for notice purposes; then, after discovery is completed and the case is ready for trial, the certification issue may be revisited. Under such an approach a conditional certification occurs early in the case.

At the first stage, or “notice stage”, the courts following this ad hoc method, require nothing more than substantial allegations that the putative class members were together the victims of single decision, policy or plan. Typically, this results in conditional certification of a representative class. If the district court conditionally certifies the class as a collective action, the putative class members are provided written notice of the matter and are given the opportunity to “opt-in”. Nothing in this approach prohibits the employer from moving to decertify this matter as a collective action at any time prior to trial on the merits.

In Mooney v. Aramco Services Company, 54 F.3d 1207 (5th Cir. 1995), the court affirmed an early conditional certification of collective action status and approved early notice. In describing the two-step process, the Mooney court, found that:

Because the court has minimal evidence, this determination is made using a fairly lenient standard, and typically results in “conditional certification” of a representative class. If the district court “conditionally certifies”, the putative class members are given notice and the opportunity to “opt-in.” The action proceeds as a representative action throughout discovery.1 Id. at 1214. This Honorable Court, assuming a “conditional certification” of this action as a collective action is granted, reserves the right to make a second determination as to the continued viability of the collective action after discovery on the merits have been completed and the case is ready for trial.

Conditional certification, for the plaintiff, is clearly preferable as it puts all collective action members on notice and allows for early interruption of the statute of limitations. For the employer it is more problematic as its current and former employees are being asked to opt into a lawsuit which may not have any merit. In addition many of the courts have required the employer to pay the cost associated with the mail out of the notice.