Important, But Not What I Was Hoping - Petition for Certiorari on FLSA Action

In my in box this morning was a press release from the Retail Litigation Center, that made my hopes soar that at long last the Supreme Court could have a vehicle for answering what I think is the one issue most in need of addressing in today's employment law world: what is required before a district court conditionally certifies a collective action under the FLSA?

The headline read, RLC Urges Supreme Court to Review Class Action Standards in FLSA Suits. But a careful reading of both the release, and even more so the excellent amicus brief filed in support of the request for certiorari, dashed my hopes. 

The current effort is to reverse the 7th Circuit's action in a Rule 23 class action based not just on the FLSA, but the Illinois wage law. The case is RBS v. Ross.  And so the fight, and as I say, still an important one, is over the correct application of Wal-Mart v. Dukes.

But still to come is the case focused on a collective (not class) actions under 29 U.S.C. 216(b).  For those of us who practice where FLSA cases are brought by themselves, not as dual cases under a state wage law, the issue of how low the bar is for conditional certification, is for employers, a terribly expensive question.

As an illustration, here is a brief procedural overview of a case I handled:

• Plaintiffs case filed by three individuals alleging they were forced to work off the clock. (One individual subsequently dropped his claim).
• Collective class conditionally certified under the existing standard.
• Over 17,000 notices mailed to potential class members.
• Approximately 1,100 written consents to join lawsuit filed.
• Approximately 40 depositions taken.
• Motion to decertify class granted, dismissing all but the two original plaintiffs.
• Jury trial held on the forced to work off the clock claims of the two original plaintiffs. Complete verdict for the defense.

Clearly not all such cases end with such a definitive determination that the initial case was without merit. However, it does make clear that an artificially low standard is a burden not only to employers, but the court system, and one that needs addressing.

It is already many millions of dollars late.