A Fair Labor Standards Act collective action can be a powerful tool for workers. Similarly, employers may find it preferable to fight an individual action as opposed to a collective lawsuit. Whether you are a worker or an employer, it is beneficial to understand the standards the law erects for certifying FLSA collective actions and the factors that may help win (or defeat) certification. When taking on such a lawsuit, it is well worth your while to consult an experienced Atlanta collective action lawyer for advice about your situation.
The FLSA does not have class actions; it permits collective actions. Unlike other class actions, where all covered individuals are deemed a part of the class unless they opt out, FLSA collective actions work differently. In a collective action, putative members must affirmatively opt in, rather than having to opt out.
One of the most fundamental aspects of collective actions is similarity among the proposed members. In a nearby unpaid hours case involving a call center, that similarity was lacking, according to the Middle District of Georgia.
The case focused on an insurance company’s timekeeping practices and its alleged failure to pay employees for all the hours they worked. Specifically, the call takers alleged that the employer did not pay them for the time they spent booting up/shutting down computers and logging into/out of software applications, which added up to substantial time lost.
In late June, the insurer scored a significant win as the District Court rejected a request to certify one employee group’s lawsuit as a collective action.
The District Court applied the 11th Circuit’s two-step approach in reaching its decision in favor of the employer. First, workers “must demonstrate a reasonable basis to believe that other employees are similarly situated in terms of job requirements and pay provisions and that others wish to opt into the action.” If the workers clear that hurdle, then the court engages in “a more rigorous analysis to determine whether opt-in plaintiffs are, in fact, similarly situated.”
The collective that the worker proposed was “all current and former hourly-paid GEICO employees who were assigned to work for and/or were managed out of a GEICO call center at any time since October 19, 2020, and whose primary job responsibilities include handling telephone calls and/or other electronic communications with prospective GEICO customers regarding the purchase of a GEICO insurance policy, regardless of job title.”
Too Many Dissimilarities
In the end, the trial court concluded that the workers simply were not sufficiently similarly situated. The workers who reported working through breaks and doing pre-shift and post-shift work were located in various call centers in different states and worked for different supervisors, each of whom varied “in their expectations and management practices regarding logging into systems, handling downtime, and conducting meetings or coaching sessions.”
Some of the call takers worked full-time inside call centers, some worked 100% remotely, while others worked hybrid schedules. The workers’ methods for reporting downtime varied as well (text message, email, internal messaging systems).
A portion of the proposed employees had an even more fundamental problem. The putative collective action encompassed employees going back as far as October 2020. However, because the FLSA’s statute of limitations goes back at most three years, some of those would-be members’ claims were time-barred in their entirety.
When the facts related to putative collective members vary to this degree, it “undermines the efficiency and fairness of proceeding as a collective action and raises serious manageability concerns,” according to the court. When that is true, sufficient similarity is absent, and the workers are not entitled to the certification of a collective action.
FLSA actions contain many nuances and gray areas, including whether or not a particular group of workers qualifies to seek relief in a collective action. Given this reality, it pays to have legal representation from experienced counsel. The knowledgeable Atlanta wage and hour attorneys at Parks, Chesin & Walbert are here to help you ensure your rights are protected in any FLSA action you need to pursue (or defend). Contact us through this website or at 404-873-8048 to schedule a consultation today.