Our law firm is frequently asked by potential clients whether they should or have to join a case for back wages and/or overtime started by one of their co-workers. To answer that question, you need to understand how the class action mechanism works under the Fair Labor Standards Act (“FLSA”). It’s actually called a “collective action” but for simplicity, we will use the term “class action.”
The FLSA permits employees to file a lawsuit as a class action and permit other employees who held similar jobs and who were paid similarly to join the case as class members. The employee who starts the case is called the “Named Plaintiff.” The Named Plaintiff seeks permission from the Court to permit other employees to join the case. If the Court permits other employees to join the case, the other employees are typically given around 45-60 days to join the case. This is called the “Notice Period.” Once the Notice Period closes, no further employees can join that specific case. However, this does not mean you lose your right to recover damages. It just means you will have to file your own lawsuit.
The FLSA is unlike other class action laws because it does not require employees to join the case and instead permits employees to file their own lawsuits. Under this scheme, you could have one class case against an employer as well as multiple single employee cases.
So if you received notice of a lawsuit, do you have to join it? No. You have three options: (1) you can voluntarily join your co-worker’s case if the Notice Period has not expired; (2) you can file your own case regardless of what your coworker is doing in his case; or (3) you can choose not to participate in a lawsuit against your employer but this means you cannot recover damages. If the Notice Period in your co-worker’s case has expired, you would only have options (2) and (3).
Some employees do not want to join a co-worker’s case because they want more control over how the lawsuit proceeds or they want to decide which attorneys represent them. If this is the case, it would be worth it to look into filing your own lawsuit. Some employees, however, would rather just be class members and permit their co-worker as the Named Plaintiff to control how the litigation unfolds. Either way, you should be able to successfully recover your lost wages if your employer violated the FLSA.
If you have heard about a minimum wage or overtime case being filed against a company you work at or used to work at or you have received a Notice of Lawsuit or Consent to Sue form in the mail, our law firm can provide you the information you need to determine what option works best for you.