Congress passed the Fair Labor Standards Act of 1938 (FLSA) to protect many American workers from unfair working conditions. Specifically, the FLSA guarantees to non-exempt, covered employees the right to receive a minimum wage and premium overtime pay for hours worked in excess of 40 hours per week. The FLSA also contains detailed child labor restrictions that regulate the employment of children. The FLSA is enforced by the Wage and Hour Division of the Department of Labor (WHD).
Employees who believe that their FLSA rights have been violated are entitled to file a complaint with the WHD. The WHD will investigate and determine whether the charges have a reasonable basis. The WHD will also decide whether to pursue an enforcement action against the employer on its own. If the WHD does not pursue its own action, the employee may file his or her own civil lawsuit against the employer. In such an action, the employee may typically recover unpaid minimum or overtime wages. Liquidated damages, in the amount of the unpaid wages recovered, are also allowed under the FLSA. The employee or applicant may also recover attorney fees and court costs. Where it is proven that an FLSA violation was intentional, the employee may recover three years’ worth of unpaid wages, instead of the standard two years’ worth of wages.
FLSA “Collective Action” Remedy
Although FLSA actions are typically brought by individual employees, the FLSA also provides for “collective actions.” Collective actions are a form of class action; they are permissible where a large number of employees’ FLSA rights were violated in a similar way.
In a class action, class representatives file and pursue a civil lawsuit on behalf of other employees who are similarly situated. All participating class members share in the class recovery. Instead of relying upon standard federal procedure, the FLSA has its own rules governing the institution of collective actions. FLSA collective actions are quite common. Following is a summary of the procedural requirements for maintaining a collective action under the FLSA.
The FLSA provides that a collective action may be filed by an employee on his own behalf and on the behalf of those employees “similarly situated.” As with a standard class action, this means that the potential class representative must show that his or her position is similar, but not identical, to the positions of other potential class members.
Unlike a standard class action where potential class members must “opt out” or formally declare themselves unwilling to proceed as part of a class action, potential class members in an FLSA collective action are required to “opt in.” Before an employee may become part of a class action, thereby forfeiting his right to also initiate an independent action against the employer, the employee must sign a written consent to participate in the collective action.
Also different from standard class actions is the FLSA lack of a notice requirement. In a standard class action, all potential class members are to be provided with some form of notice of the pending action. In an FLSA collective action, no such notice is statutorily required. Thus, it is possible for potential class members to never hear of a pending collective action in which their rights could be avenged. In such cases, however, no due process rights are impinged because the collective action does not foreclose the unaware class member’s rights to file his or her own independent action.