The Fair Labor Standards Act (FLSA) provides standards for minimum wage and overtime pay. Employees may be eligible to participate in an overtime collective action lawsuit if they have been unlawfully denied overtime wages. The FLSA collective action procedure permits the aggregation of hundreds or thousands of claims requiring only that the employees be “similarly situated.”

Collective Action
Collective actions share some characteristics with class actions, but are not the same. In FLSA cases, an employee must opt in, meaning that they must affirmatively sign a document stating that they wish to be a part of the lawsuit.  One or more employees may maintain an action, on behalf of themselves and other employees who are similarly situated, to recover damages on any of the grounds available for individual FLSA relief. Employees who do not file a written consent are not bound by the outcome of the collective action.

Similarly-Situated
Employees must be “similarly situated” to bring a collective action. Employees are “similarly situated” for purposes of FLSA collective wage suits if they are subject to a common policy, plan or design, that stretches across company departments or locations. If there is no commonality, there is no collectiveness and the lawsuit will be dismissed as to the opt in plaintiffs.  The opt in plaintiffs will then have to bring their own lawsuit.  A collective action is simply a way to promote efficient use of the Court’s time and resources.  One case instead of many individual cases.

Certification
Collective actions involve a “certification” process. The first “phase” of the collective action is the “conditional certification” phase. The case is filed and the court is asked to certify a “class” of employees who are similarly situated. In the second stage, after the “class” is conditionally certified, discovery, the information-gathering stage of a lawsuit, is conducted as to the named and opt-in plaintiffs. If the court finds a common policy unites the group of similarly situated employees and that the claims can be resolved with common evidence, the collective action moves forward.

Statute of Limitations
Generally, there is either a two-year statute of limitations for FLSA overtime claims or a three-year statute of limitations for willful violations; an action for opt-in plaintiffs only begins when an employee signs a written consent to become a party and then files it with the court. Therefore, an individual’s own lawsuit does not start until he or she signs the consent and opts in and the from is filed with the court. Signed consents filed after the filing of the original complaint do not relate back to the date the complaint was filed. Thus, for each employee who opts into a case after the lawsuit is filed, the action is ”commenced” for limitations purposes on the date on which the employee’s written consent is filed with the court.