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Collective actions under the Fair Labor Standards Act (FLSA) present unique procedural and substantive challenges for plaintiffs, defendants, and their lawyers. 

This paper, and the accompanying live session, review key practice issues in the litigation of FLSA collective actions, from conception through discovery, certification, settlement and trial, based on recent caselaw and the experiences of the presenters in litigating and trying these cases before juries – from the perspective of plaintiffs’ counsel (Mr. Wells) and the defense (Mr. Homans). This is not a law review paper or analysis of legal trends.

Before moving into the litigation issues, we note that FLSA claims most commonly fall into these six categories: (1) misclassifying employees as exempt from overtime pay (e.g., an “assistant manager” who does substantial clerical work), (2) failing to play employees for off-the-clock work (e.g., donning and doffing uniforms and equipment, waiting time, etc.), (3) failing to pay employees for short breaks or automatically deducting meal breaks even if not taken, (4) improperly applying the tip credit, including deducting and retaining tips from wages (most common with restaurant workers), (5) miscalculating overtime pay, and (6) paying a piece rate that results in an overtime or minimum wage violation. See Employment Law Class Actions § 10.1, Littler Mendelson, 3d Ed. (2014).

1. Pre-Complaint: Clients, Claims and Responses

Plaintiffs’ counsel find potential collective action plaintiffs through a variety of resources, from referrals by other lawyers and prior clients, to website advertising, direct mailing and emailing, LinkedIn searches, and inquiries from individuals calling about unrelated topics. With all such contacts, plaintiffs’ counsel must be sure to abide by the applicable Rules of Professional Conduct, most typically ABA Model Rules 7.3 (relating to solicitation of clients) and 4.3 (relating to dealings with unrepresented persons).

Employers often learn of these cases when employees come to their supervisors providing notice of the written recruitment by a plaintiffs’ lawyer or firm. Other times, the first notice is when the employer receives the claim or demand letter from the plaintiffs’ lawyer on behalf of one or more employees claiming an FLSA violation and readiness to sue if the matter cannot be promptly resolved on a class-wide basis.

Key issues for the defense and plaintiffs at this stage:

• Obviously, the employer and its counsel will want to investigate the claims, determine the merits of the claim, the potential class size and liability, the experience of plaintiffs’ counsel, and/or whether any individual factors suggest the case will have challenges as a collective action.
• Plaintiffs often seek tolling of the statute of limitations while the defense counsel investigates and discusses settlement.
• Will the parties want to consider settlement and how will that be handled given the FLSA’s requirement for court approval of a collective action settlement? Most employers are hesitant to settle a class or collective action at this early stage, preferring to test the facts and the commitment of plaintiffs and their counsel before forking over thousands or millions of dollars in a settlement requiring court approval. On the other hand, if liability is clear (as is sometimes the case in FLSA matters), this can be a good time to broach how the case can be efficiently settled without exorbitant legal fees.
• Both sides will want to determine whether any binding arbitration agreements apply and whether they will hold up to challenge. Even if such agreements are in place that will not stop all plaintiffs’ counsel from proceeding with viable claims.
• This also can be a time to settle with only the named plaintiff(s), potentially mooting the case – or inspiring the plaintiffs’ counsel (now with a pocket of cash from settlement #1) to go fishing for other potential plaintiffs or act as confirmation to plaintiff’s counsel that this is a substantial and viable claim.

2. Complaint as Collective Action, Class Action or Both

While FLSA collective actions and Rule 23 class actions both involve claims on behalf of named plaintiffs and multiple other “class members,” they are worlds apart in process, scope and legal standards. Cf. 29 U.S.C. § 216(b) (FLSA collective action provision) and Fed. R. Civ. P. Rule 23 (class actions).

Most importantly, perhaps, FLSA collective actions require each potential plaintiff to “opt in” with a written consent signed by that individual to join the lawsuit. In contrast, a Rule 23 class action, once certified, includes all members of the putative class, except those who affirmatively “opt out” of the class action.

FLSA collective actions and Rule 23 class actions differ in other meaningful ways, including that Rule 23’s class certification standards are more demanding:

     (a) Prerequisites. One or more members of a class may sue or be sued as representative parties on behalf of all members only if: requirements that the plaintiffs:

          (1) the class is so numerous that joinder of all members is impracticable;

          (2) there are questions of law or fact common to the class;

          (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and

          (4) the representative parties will fairly and adequately protect the interests of the class.

In addition, the plaintiffs must show under Rule 23(b) that:

               (1) prosecuting separate actions by or against individual class members would create a risk of:

                     (A) inconsistent or varying adjudications with respect to individual class members that would establish incompatible standards of conduct for the party opposing the class; or

                    (B) adjudications with respect to individual class members that, as a practical matter, would be dispositive of the interests of the other members not parties to the individual adjudications or would substantially impair or impede their ability to protect their interests;

               (2) the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole; or

               (3) the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. The matters pertinent to these findings include:

                    (A) the class members’ interests in individually controlling the prosecution or defense of separate actions;

                    (B) the extent and nature of any litigation concerning the controversy already begun by or against class members;

                    (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and

                    (D) the likely difficulties in managing a class action.

The plain text and legislative history of § 216(b), however, do not suggest that the two procedures are mutually exclusive or irreconcilable.

The Second, Third, Seventh, Ninth, and DC Circuits have held that hybrid actions can be maintained in the same proceeding. See Busk v. Integrity Staffing Sols., Inc., 713 F.3d 525, 528–30 (9th Cir. 2013), Integrity Staffing Sols., Inc. v. Busk, 135 S. Ct. 513 (2014); Knepper v. Rite Aid Corp., 675 F.3d 249, 259–62 (3d Cir. 2012); Shahriar v. Smith & Wollensky Rest. Grp., Inc., 659 F.3d 234, 247–49 (2d Cir. 2011); Ervin v. OS Rest. Servs., Inc., 632 F.3d 971, 973–74 (7th Cir. 2011); Lindsay v. Gov’t Emps. Ins. Co., 448 F.3d 416, 424 (D.C. Cir. 2006).

In determining whether to pursue a hybrid action, Plaintiff’s counsel will want to decide which is the predominant claim and review the implications of that determination. For example, if the onus is on the employer to substantiate a minimum wage exception (such as in tip credit cases), it will be an easier Rule 23 class action. In contrast, if the issue is misclassification, showing commonality regarding duties may be harder, leading to a greater likelihood that certification under Rule 23 will be denied – but that a FLSA collective action could succeed.

An excellent review of the distinction between FLSA collective actions and Rule 23 class actions in the employment context is contained in Fischer v. Fed. Express Corp., 42 F.4th 366, 375-77 (3d Cir. 2022):

The difference between the language of § 216(b) and Rule 23 is striking. As the Second Circuit has observed, these two provisions “bear little resemblance to each other.” Scott v. Chipotle Mexican Grill, Inc., 954 F.3d 502, 519 (2d Cir. 2020).

The FLSA collective action device contains none of the crucial requirements that allow the class action to be excepted from certain rules of “general application in Anglo-American jurisprudence.” Hansberry, 311 U.S. at 41-43. Instead, the FLSA collective action only requires that the opt-in plaintiffs be “similarly situated.” 29 U.S.C. § 216(b). As the Ninth Circuit aptly explained, “[t]his gap between the requirements of collective and class proceedings is to be expected, as many of the rules specific to class actions have evolved to protect the due process rights of absent class members, a consideration not pertinent under the post-1947 FLSA.” Campbell, 903 F.3d at 1112. The lack of such mandatory protections and process for FLSA collective actions means they should not be analogized to class actions. See Taylor, 553 U.S. at 900-01; Canaday, 9 F.4th at 403; Campbell, 903 F.3d at 1112 (“[A]s nonrepresentative actions, collective actions have no place for conditions such as adequacy or typicality.”).

Furthermore, while courts often borrow language from the class action context when discussing  the “certification” of a collective action, that is a misnomer. The FLSA does not mandate courts take any action to certify a collective action. 29 U.S.C. § 216(b). The widely practiced common law “certification” process courts have adopted only results in notice to potential plaintiffs, rather than the creation of an independent legal entity. See Genesis Healthcare Corp., 569 U.S. at 75 (“The sole consequence of conditional certification [in an FLSA collective action] is the sending of court-approved written notice to employees, who in turn become parties to a collective action only by filing written consent with the court.” (citation omitted)); Zavala v. Wal Mart Stores Inc., 691 F.3d 527, 536 (3d Cir. 2012) (“[T]he ‘conditional certification’ is not really a certification. It is actually . . . the [facilitation of] sending of notice to potential class members.” (citation omitted)); Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233, 1259 (11th Cir. 2008) (“Because similarly situated employees must affirmatively opt into the litigation, the decision to certify the action, on its own, does not create a class of plaintiffs.”). That “[d]istrict courts have also allowed opt-in plaintiffs to stay in the litigation, even after certification is denied,” Mickles v. Country Club Inc., 887 F.3d 1270, 1280 (11th Cir. 2018), further demonstrates that FLSA collective action “certification” is fundamentally different from the certification of a Rule 23 class. While this linguistic imprecision may not seem significant, the fact that certification does not create an independent legal entity with its accompanying rights and protections is a critical distinction between the FLSA collective action and the Rule 23 class action.

Once the class is certified, Rule 23(a) explicitly contemplates the named plaintiff or defendant acting as a “representative part[y].” Fed. R. Civ. P. 23(a). No analogous language appears in § 216(b). See Campbell, 903 F.3d at 1113 (stating that the lack of any mention of a “class proceeding” in § 216(b) indicates an affirmative congressional choice to distinguish an FLSA collective action from a Rule 23 class action). In contrast, an opt-in plaintiff  [*377]  under § 216(b) becomes a “party plaintiff.” 29 U.S.C. § 216(b). By defining them as party plaintiffs, the statute indicates “opt-in plaintiffs should have the same status in relation to the claims of the lawsuit as do the named plaintiffs.” Prickett v. DeKalb Cnty., 349 F.3d 1294, 1297 (11th Cir. 2003); see also Mickles, 881 F.3d at 1278 (finding that opt-in plaintiffs remain parties until they are dismissed, and may appeal adverse judgments in the same manner as a named plaintiff); McLaughlin on Class Actions § 2:16 (2021) (“Unlike absent members of a certified class action, any plaintiff who opts in to a collective action has full party status and obligations.”).

Rule 23 also  contains important post-certification protections that are notably absent in § 216(b). Because absent class members are not present in court, the court is authorized to issue various orders “to protect class members and fairly conduct the action.” Fed. R. Civ. P. 23(d)(1)(B). The FLSA does not provide any analogous authority. Rule 23 also establishes a rigorous system surrounding the settlement of class actions in which absent class members are notified and provided an opportunity to opt-out and to object. Fed. R. Civ. P. 23(e). And before approval of the settlement, the court must conduct a hearing and find “it is fair, reasonable, and adequate.” Fed. R. Civ. P. 23(e)(2). Once again, FLSA collective actions contain none of these protections. See 29 U.S.C. § 216(b); McLaughlin on Class Actions § 2:16 (“Unlike class actions, which cannot be settled without notice to absent class members under Rule 23(e), a collective action may be settled without notice to absentee members.” (footnote omitted)).

These differences do not solely manifest themselves in the statutory text or during the certification process. The essentially individual character of an FLSA collective action litigation means “each FLSA claimant has the right to be present in court to advance his or her own claim.” Wright & Miller, Federal Practice and Procedure § 1807. And defendants in an FLSA collective action retain the ability to assert “highly individualized” defenses with respect to each of the opt-in plaintiffs. Thiessen v. GE Capital Corp., 267 F.3d 1095, 1107 (10th Cir. 2001); see also Morgan, 551 F.3d at 1263 (finding the presence of individualized defenses does not prevent an FLSA collective action from being brought); Shabazz v. Morgan Funding Corp., 269 F.R.D. 245, 251 (S.D.N.Y. 2010) (allowing defendants to “assert individualized issues that may result in factual disputes at trial” in an FLSA collective action); Rodolico v. Unisys Corp., 199 F.R.D. 468, 484 (E.D.N.Y. 2001) (“[S]tanding alone, the prospect of individual defenses should not defeat authorization of a collective action in this case.”). Moreover, district courts presiding over FLSA collective action trials typically instruct juries to consider the claims of each plaintiff entirely separately.

Accordingly, from start to finish, FLSA collective actions are materially different from Rule 23 class actions with regard to the representative nature of the suits.

Given this variation of standards and scope, it is not difficult to see why some claims are brought only as FLSA collective actions, and others as hybrid actions.

3. Rule 68 – Offers of Judgment

Because the FLSA does not require proof of intent to establish basic liability – the employer either paid the employee properly or it did not – discovery may reveal that at least in the case of the named plaintiffs, judgment in favor of the plaintiff is likely.  In such cases, defendants may desire to make an “offer of judgment” under Rule 68 of the Federal Rules of Civil Procedure.

Issuing such an offer can have three key consequences:

• If judgment is offered in the full amount the plaintiff could recover at trial, including attorneys’ fees and costs, no case or controversy remains and the case should be dismissed;
• In the case of collective actions, the Supreme Court ruled in Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523, 1526 (2013), that when the claim of a single plaintiff is rendered moot by an offer of judgment, the case is no longer a live “case or controversy” and must be dismissed. Courts have interpreted this to apply whether or not the offer is accepted, if the offer is for the full amount the plaintiff could recover at trial. See id. at 1529 n.4 and Cabala v. Crowley, 736 F.3d 226 (2d Cir. 2013); Shahin v. Delaware Fed. Credit Union, 2014 U.S. Dist. LEXIS 29863 (D. Del. Mar. 6, 2014).
• A defendant also can offer something less than the full amount claimed by the plaintiff in a Rule 68 offer of judgment. In that case, if the receiving party rejects the offer, prevails at trial, and recovers an amount that is less than the offer, the rejecting party must pay the offeror’s costs incurred after the offer was made.  Further, when the statute under which the plaintiff has sued defines “costs” to include “attorney’s fees,” a plaintiff who rejects a Rule 68 offer of judgment and then achieves a less favorable judgment at trial cannot recover attorney’s fees under the statute. This obviously puts substantial pressure on the plaintiff and her counsel to assess their risk of a marginal win with damages below the offer, and thus encourages settlement.

4. Individual Consent and the Collective Action Process

Section 216(b) provides that “No employee shall be a party plaintiff to any such [collective] action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.” This language creates the “opt in” obligation in FLSA collective actions that differs so radically from Rule 23’s presumption that all members of a putative class are included unless they “opt out.”

Notably, the statute of limitation on an individual’s claim runs until he or she files the written consent.  Somewhat surprisingly, we have seen named plaintiffs fail to submit their written consent forms until months after the complaint is filed, forfeiting wage claims with each passing day. Moreover, if the time between the filing of the complaint and the collective action notice is extended, the employer may be able to establish a change in circumstances that limits or mitigates the class impact. This also incentivizes plaintiffs to file for conditional certification of the FLSA collective as soon as practicable. Depending on the jurisdiction, there are competing standards for conditional certification and the amount of pre-certification discovery plays a factor in determining which standard a court will apply. Notably, the Fifth Circuit (and the Sixth) have rejected entirely the two-step approach. See Swales v. KLLM Transport Servs., LLC, 985 F.3d 430, 434 (5th Cr. 2021).

Also, of extreme importance to both sides in evaluating collective action claims, the opt-in participation rate in FLSA collective actions is usually below 25 percent of the eligible employees receiving notice (see Notice section below), and often as low as 5-10 percent. In a recent collective action handled by Mr. Homans, the collective had nearly 1,500 potential members but only about 130 opted in, greatly reducing the employer’s exposure in the action. Furthermore, through discovery and motion practice that opt-in class was reduced to 61 members.

5. Initial Certification – “Lenient” Standard and Timing – and Final Certification

Much has been written about the two-step certification process under the FLSA, which has been recently rejected by the Sixth Circuit and the Fifth Circuit, and will not be repeated here, as it would require its own seminar.  Suffice it to say that initial certification is a low bar, requiring only a showing that all putative collective class members are “similarly situated” in order to allow for written notice to prospective opt-in plaintiffs. 

Needless to say, both sides should gather cases where similar claims were certified/decertified so as to cite or distinguish as necessary.  See, e.g., Wilson v. Marlboro Pizza, LLC, No. 22-1465, 2024 U.S. Dist. LEXIS 19279 (D. Md. Feb. 5, 2024) (pizza delivery drivers conditionally certified with court noting the low threshold for certification and the fact that similar claims were also conditionally certified).

A good overview on these certification standards and their current evolution can be found at “Recent Developments in Collective Action Certification Under the Fair Labor Standards Act,” by Christopher M. Cascino and Peter W. Zinobe, Florida Bar Journal, Vol. 97, No. 6, November/December 2023 p. 16, available at https://www.floridabar.org/the-florida-bar-journal/recent-developments-in-collective-action-certification-under-the-fair-labor-standards-act/.

            Due to the breadth of issues covered in this paper, we will save this topic for another day. In the live presentation, we may touch on practical considerations at each of the two stages of certification.

6. First-phase discovery issues
   • Phases and Scheduling order – depending on the standard the court uses in analyzing collective certification, as well as the number of opt-ins to date, these two issues will largely dictate to plaintiff’s counsel the amount of discovery necessary (if any) before moving for conditional certification under Section 216(b) of the FLSA. Defendants usually will want to push for more extensive discovery from the plaintiffs in the first phase, before conditional certification is sought, in order to identify and highlight weaknesses in the plaintiffs’ claims – both as to the merits and as to whether they are “similarly situated” to the rest of the putative class.
   • Class issues and merits – from plaintiff’s perspective, if counsel can carry its burden in showing Rule 23 class certification is appropriate, it will necessarily be able to show that conditional certification is warranted. Accordingly, it may be strategically valuable to move for class and conditional certification at the same time.
   • Named plaintiffs and rest of class – In considering whether to move for early summary judgment against plaintiff’s individual claims, an employer should consider the impact of losing that motion on any subsequently filed class or collective action motion. Of course, if the claim is highly individualized, early summary judgment practice may highlight those issues and therefore effectively block any certification motion.

7. Contact with the Putative Class Members

Key concerns with regard to contact with putative class members before they have joined the action include:

• Plaintiffs’ counsel not violating Rule 7.3 with regard to soliciting clients.
• Counsel for both sides not violating Rule 4.3 with regard to communications with unrepresented persons when contacting putative plaintiffs before they have opted in.
• Defense counsel or their clients not retaliating against employees who opt in to a collective action.

It is generally unnecessary for plaintiff’s counsel to contact prospective FLSA collective class members, given that each of those individuals will ultimately receive written notice of the litigation informing them of their options with respect to joining the case.  It can be a trickier situation for defendants for whom some, and often many, prospective opt-ins are still actively employed. To the extent putative class members continue to work for the employer, the employer obviously has the right to maintain contact with them, evaluate their performance, offer them raises and promotions, adjust the terms of their employment, etc., so long as the actions are for legitimate business reasons and not designed to interfere with the pending litigation or the employee’s rights. To the extent plaintiff’s counsel learns of any potentially inappropriate communications, this should be highlighted before the court and raised as an issue in any class or collective action certification briefing.

Moreover, if either side has reason to believe that opposing counsel, or its client, is violating the Rules of Professional Conduct or otherwise engaging in unethical or abusive practices or communications, it should immediately seek court involvement to stop such actions and impose sanctions, if warranted.

At times, during the pendency of a collective action, employers will seek to impose alternative dispute resolution (ADR) agreements on employees, including putative plaintiffs, restricting their right to participate in class and collective actions. While generally such maneuvers are seen as improperly interfering with the collective action process, courts in some circumstances have not restrained such actions, especially when part of a companywide process not motivated by the litigation and in which the proffer of the ADR agreements has not been coercive.

8. Court-Supervised Notice to Putative Collective Class

The court must approve the written notice that goes to putative class members when a collective action is conditionally certified, giving each potential class member the opportunity to “opt in” to the case. These notices are often the first and only contact putative plaintiffs received, and therefore counsel for both sides tend to be fully engaged in the process. Any suggestion to employ a standardized form used by other courts in the past should be resisted, especially by defense counsel, to ensure that the notice is not unbalanced, argumentative or otherwise more favorable to one side or the other.

Frequent issues of dispute include:

• Titles and headings that may sensationalize, argue or mischaracterize the status of the case.
• Repeated statements or headings informing the recipients of the need to promptly act if they wish to opt in, versus reliance on one or two notices of the deadline for opting in.
• Differences in how the claims and defenses should be summarized in the notice, with each side seeking the most desirable statement of its position.
• Methods for dissemination of the notice and return of the claim forms – by email, mail, fax, text or otherwise.
• Whether reminder notices should be provided and, if so, how.
• Notice of the recipients’ right to not join the lawsuit.
• Notice to the recipients of potential consequences from joining the lawsuit, including participation in written discovery, depositions, and a duty to pay a portion of the defendants’ costs, should the plaintiffs lose.
• Directions and/or limitations on the recipients’ ability to contact plaintiffs’ counsel if they have questions about the notice.

Due to the various substantive and logistical issues of getting non-parties to affirmatively “opt in” to the case by submitting a consent form, the participation rates in FLSA-only collective actions are often quite low, usually under 25 percent and commonly in the 5-15 percent range.  The opt-in rates are even lower for putative plaintiffs still working for the employer.

9. Collective Discovery of Unnamed Collective Members

While plaintiffs and their counsel often will want to limit discovery to class issues and facts relating to the named plaintiffs, courts often grant defendants substantial discovery of other opt-ins. Defendants often seek such discovery to (1) test the merits of each plaintiff’s claim, (2) show variations in the circumstances of each plaintiff (such as location, supervisor, work practices, policies, etc.) to defeat final certification, and (3) to flush out opt-in plaintiffs who are not committed to the case and will drop out (withdraw their consent forms) rather than invest any time and effort in the case. To counter this, plaintiff’s counsel should consider whether it wants to argue for representative discovery or sampling.  Often, the court will consider the total number of opt-ins when analyzing such requests. All that said, counsel for both sides should consider the “end game” and overall litigation strategy in determining how much class discovery to conduct.

• Written discovery – courts will more likely allow written discovery of each opt-in plaintiff, if the process will not be unmanageable (i.e., a few hundred plaintiffs or less, as opposed to thousands). The parties also may agree – or the court may impose – a limitation on the number of document requests and interrogatories to ensure the discovery is not repetitive, abusive or harassing.
• Depositions are less likely to be granted – or sought – with regard to all opt-in plaintiffs, but there are cases in which it has been allowed. As noted above, such discovery can often flush out disinterested opt-in plaintiffs, who will prefer to withdraw from the case rather than be deposed. On the other hand, such extensive depositions hold out the prospect of highlighting the best and worst plaintiffs to be used for final certification, summary judgment and trial purposes. Due to each deposition involving many of the same issues and factual questions, most counsel find the process to have diminishing returns – for either side – at some point. Moreover, legal fees become a significant factor at some point.
• Sampling – Oftentimes, and depending on the total number of opt-ins, courts will “split the baby” and order limited discovery of a random sample of opt-in plaintiffs. Such a method potentially holds the greatest likelihood of creating a representative group of opt-ins, but the parties often have difficulty agreeing on the selection method. Notably on this issue, if the plaintiffs do not ensure some measure of representativeness in the discovery allowed, their case may be subject to challenge by the defendants on final certification and at trial, as set forth more fully in this paper.
• Each side chooses – Some parties and courts resolve this issue by allowing each side to choose a number of unnamed plaintiffs for deposition and other discovery. While this method may appear balanced at first blush, it may favor the plaintiffs as their counsel have access to their own clients and can determine who will best present their side of the story. In contrast, defense counsel will not be able to interview the unnamed plaintiffs in advance and will be limited to whatever information and insights the employer can provide, as well as any written discovery produced as to each opt-in plaintiff prior to selections for deposition.
• Discovery of Defendants’ personnel – Depending on the nature of the case, plaintiffs’ counsel may be able to argue for discovery of a substantial number of the employer’s personnel (e.g., managers of opt-in plaintiffs). Plaintiffs’ counsel should consider such discovery as it may blunt defendant’s enthusiasm for conducting discovery of opt-ins as well as help unify testimony if opt-ins start discussing the uniqueness of their job duties.
• E-discovery – Collective action claims can involve outrageous amounts of electronic discovery, which both sides should consider in light of Rule 26(h)’s mandate that discovery be “proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Based on these restrictions, courts will often block overbroad demands for e-discovery, and defendants should fight requests for entire plaintiff Outlook email boxes to establish times worked, duties, etc., as most of the information produced will be irrelevant and unduly burdensome to gather and search – and may be wildly disproportional to the relatively low value, per plaintiff, of a FLSA claim. Defendants should be prepared to explain why the discovery sought is excessive, and what alternative information can be produced at a lower burden.

10. Motions for Summary Judgment

FLSA actions are one of the few areas of employment law in which plaintiffs file motions for summary judgment as much as, or more than, defendants. This is largely because the employer bears the burden of proof to establish that a position is exempt from overtime under the FLSA. That said, defendants may find that focused motions for partial summary judgment may help narrow or defeat a collective action under the FLSA, or at the very least highlight to the judge (and opposing counsel) areas in which the plaintiffs’ case is weak, if not fatally so. Plaintiffs’ counsel should consider the impact of framing issues for the court as well as the impact on potential certification motions (including, possibly, negatively affecting Rule 23 class certification).

11. Experts

One unique area of expert testimony common in FLSA collective actions is a “desk audit” or study to establish whether the position at issue is exempt.  Occupational experts can shadow employees in the position to establish the amount of time spent at specific tasks to determine whether the “primary duty” – timewise or by importance – is exempt or non-exempt. This can be critical evidence in a collective action, and employers should consider conducting such a study as soon as possible after receiving notice of a claim to determine if the employer can meet its burden to prove the position is exempt. 

Of course, plaintiffs often will not accept an employer’s “expert” study, but such a review and report provide (a) strong evidence as to liability, as well as (b) evidence to bolster the employer’s good-faith basis for deeming the position exempt and lack of a willful violation of law (at least from the time of the expert’s report forward).

If the expert informs the employer that the analysis finds the position to be non-exempt, that can be problematic and/or foster an early focus on settlement. Because of this possibility, employers may wish to first conduct an attorney-client privileged work-product expert review, before preparing one that is discoverable.  In either case, the employer should be aware that any such review – privileged or not – may be relevant and discoverable in an employer’s effort to prevail on a “good faith” defense.

12. Trial

FLSA collective actions are rarely tried (one source puts the number at less than 20 such trials in the past 10 years), but they can be, and both presenters have tried collective actions to verdict.

Key points to consider in trying such cases:

• The defendant will want to push plaintiffs’ counsel to set forth a trial plan as to how the matter can be tried in a logical and coherent fashion that is not unwieldy or unduly confusing, redundant or difficult for the jury to follow. While the FLSA does not require presentation of a trial plan, as class actions do under Rule 23(d), defense counsel will want to push for one. From the plaintiffs’ perspective, counsel should think about the trial plan prior to even drafting the initial complaint. How plaintiffs will prove their case should be the backbone of how a complaint is framed. In addition, ask whether the case will present better before a jury or judge? Should plaintiffs’ counsel ever consider a bench trial?
• Perhaps the most important issue at trial will be who will testify on behalf of the plaintiffs and whether they can – or need to – establish that the testifying witnesses can establish that they are truly representative of the entire class. Plaintiffs’ counsel should be preparing named plaintiff(s) for trial testimony regularly and repeatedly, and will want the named plaintiff(s) to be able to easily convey the alleged wrong committed in a way that is relatable to the jury. See Fischer, above.
• Defendants will want to note distinctions between the various plaintiffs – including varied job tasks, locations, supervisors, and time periods – but will need to establish that such variations are sufficient to show that they plaintiffs are not truly representative. Plaintiffs will push back that final certification established the predicate “similarly situated” nature of the plaintiffs’ claims, but Fischer, 42 F.4^th at 375-77, provides ammunition that more is required due to the lack of strict standards under Rule 23 to assure the representative nature of the named plaintiffs.
  • Conversely, defendants will want to have strong testimony from others who served in the same position who can refute – or at least cast into doubt – the testifying plaintiffs’ claims as to their job duties, hours worked, or other relevant issue. These disinterested third party witnesses can be decisive at trial. And, of course, management witnesses from the defense will need to be carefully selected and prepared to testify and bolster the employer’s key defenses. Plaintiffs will seek to minimize the impact of any testimony from these individuals. This can begin with consideration of the best framing of the issue so as to deflect impact or obviate such testimony entirely.
• Jury instructions are key on many of these issues, but there is woefully little guidance on “standard instructions” for an FLSA collective action. While the Eastern District of Pennsylvania’s Model Jury Instructions, available on-line, are generally very good, the District does not have model FLSA instructions. Other Circuits do have such instructions, which can be useful. Oftentimes, the jury instructions adopted in a FLSA collective action mirror the federal regulations for the applicable exemption or standard at issue. Counsel should work to put this language into concise, understandable bites that a juror can digest.
• Both sides should consider how the claim and issues in the case will present to a jury of laypeople. From the plaintiffs’ prospective, if counsel cannot convey the issue to the lawyer’s family at Thanksgiving without them laughing, how will the case appear to a jury? Are there issues on either side that present it in a bad light?  How can the other side exploit those weaknesses? Consider motions in limine to address or minimize such issues.
• Voir dire also can be pivotal at trial in getting the best panel for each side. In our experience, older more conservative jurors will be more receptive to defense arguments, especially if supported by job descriptions, resumes, performance evaluations, and employment contracts. Younger jurors, on the other hand, are often more skeptical about employer claims that are backed by documents, and more open to employee testimony that the job descriptions, policies and resumes are ”fluff” – designed to protect the employer – and that the firsthand testimony of the employees as to what actually happened on the job is more credible.
• Given the number of plaintiffs, these cases also can be difficult to consolidate into a clear story and themes in opening statements and closing arguments. Honing these stories and themes during litigation and motion practice, and then refining them in preparation for trial, can be powerful.
• In addition, charts and visuals as to each testifying plaintiff at closing arguments may help both sides remind the jurors of the evidence they saw and heard, and how it fits into the broader issues they will have to decide.

As for verdict sheets, plaintiffs will want verdicts as to the full collective, such as “Do you find that defendant ABC Company has proven the position of Assistant Manager is exempt?” In contrast, defendants will want individualized verdict questions for each testifying plaintiff who is purported to be “representative” of the remainder, given the unique nature of FLSA opt-in claims, as explained in Fischer.  Defendants also may seek a jury interrogatory as to whether the representative plaintiffs have proven that they fairly represent the non-testifying plaintiffs.