Eleventh Circuit Holds that a Fair Labor Standards Act “Opt-In” Collective Action Claim Does Not Bar Further State-Law “Opt-Out” Class Action Claims

On September 28, 2016, the Eleventh Circuit issued its decision in Calderone v. Scott, a case that had implications for Florida plaintiffs with wage claims against their employers.[1]  In Calderone, former employees of the Lee County Sheriff’s Office brought suit against the Sheriff under the federal Fair Labor Standards Act (“FLSA”) and the Florida Minimum Wage Act (“FMWA”) for off-the-clock work for which they were not paid.[2]  The plaintiffs brought the FMWA claim as a class action under Federal Rule of Civil Procedure 23(b)(3).[3]  The trial court in the Middle District of Florida denied class certification for the FMWA claims after finding that the plaintiffs’ FLSA and FMWA claims were “mutually exclusive and irreconcilable” because the FLSA requires plaintiffs to “opt in” as class members and a Rule 23(b)(3) state-law class action requires plaintiffs to “opt out.”[4]  The trial court relied on the Fifth Circuit Court of Appeal’s opinion in LaChapelle v. Owens-Illinois, Inc., to reach its decision.[5]

The Eleventh Circuit Court of Appeals reversed, holding that “an FLSA collective action and a Rule 23(b)(3) state-law class action may be maintained in the same proceeding” because there is “no ‘irreconciliable’ tension between these two types of actions.”[6]  The Eleventh Circuit reasoned that the plain language of the FLSA, as well as its legislative history, “reflects no congressional intent to disfavor state-law Rule 23(b)(3) class actions.”[7]  Instead, “Congress created the FLSA’s opt-in requirement primarily as a check against the power of unions and not to decrease the availability of opt-out class actions.”[8]  In its opinion, the Eleventh Circuit held that the trial court’s reliance on LaChapelle was an abuse of discretion because LaChapelle “ruled on a different statute . . . . [and] did not address whether a party can pursue an FLSA collective action along with a parallel Rule 23(b)(3) state-law class action.”[9]  Thus, the Eleventh Circuit has aligned itself with five other United States Circuit Courts of Appeal that have considered the issue and held that the FLSA “opt-in” collective action does not bar state-law “opt-out” class actions brought under Rule 23(b)(3).[10]

James Jeffrey Burns and William P., Jr. are business and commercial litigation attorneys with Johnson, P.A. in Tampa, Florida. The Firm’s practice includes all aspects of employment litigation, including cases brought under the Fair Labor Standards Act and other federal statutes, and those involving misappropriation of trade secrets, breach of restrictive covenants, other contractual breaches, and related business torts.  Jeff and Bill can be reached by phone at (813) 699-4859 or on the web at www.jnd-law.com.

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[1] No. 15-14187, 2016 WL 5403589, *1 (11th Cir. Sept. 28, 2016).

[2] Id. (citing 29 U.S.C. § 201 et seq.; § 448.110, Fla. Stat.)

[3] Id.

[4] Id.; see also 29 U.S.C. § 216(b) (“No employee shall be a party plaintiff to any such [FLSA] 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.”); Fed. R. Civ. P. 23(c)(2)(B)(v) (“[T]he court will exclude from the class any member who requests exclusion[.]”).

[5] Id. (citing LaChapelle v. Owens-Illinois, Inc., 513 F.2d 286, 289 (5th Cir. 1975) (per curiam)).

[6] Id. at *1, *4.

[7] Id. at *3 (noting, for example, the FLSA’s “savings clause explicitly saying that the FLSA does not preempt state labor laws”)

[8] Id. at *4

[9] Id.

[10] Id. at *1 (noting that the D.C., Second, Third, Seventh, and Ninth Circuits have reached the same conclusion about the FLSA).