In a case for minimum wage and overtime claims, the Eleventh Circuit joined the D.C., Second, Third, Seventh, and Ninth Circuits in holding that a state-law Rule 23 class action may be maintained in the same proceeding as a Fair Labor Standards Act (“FLSA”) collective action.  Calderone, et. al. v. Scott, No. 2:14-cv-00519-JES-CM (11th Cir. Sept. 28, 2016).

Plaintiffs sued the Sheriff of Lee County, Florida in his official capacity alleging claims under the FLSA as well as the Florida Minimum Wage Act (“FMWA”) for minimum wage and overtime violations.  Plaintiffs claimed that they, and other similarly situated employees, performed off-the-clock work for which they were not paid. The Middle District of Florida granted conditional certification under the FLSA, but denied conditional Rule 23(b)(3) certification on plaintiffs’ FMWA claims.  Plaintiffs appealed to the Eleventh Circuit.

The Eleventh Circuit found that the purpose behind both collective and Rule 23 class actions is to resolve common claims efficiently.  It recognized that the District Court was concerned about the procedural differences between the two claims.  The Eleventh Circuit, however, found that the actions are not “irreconcilable.”  The plain text of the FLSA does not indicate that a collective and class action cannot be maintained simultaneously.  The FLSA explicitly provides that a collective action cannot coexist with an action brought by the Secretary of Labor.  This text demonstrates that Congress knew how to carve out actions that should not be maintained with a collective action.  As a result, the Eleventh Circuit concluded that Congress did not intend the FLSA to preempt a Rule 23 class action.

Moreover, Rule 23’s opt-out requirements were developed so they did not affect the FLSA’s existing opt-in scheme.  The Court found nothing confusing about sending two separate notices or the other procedural components involved in class or collective actions.  As a result, the Eleventh Circuit concluded that there is no tension in maintaining both a Rule 23 class and FLSA collective action.

We anticipate that we will see a higher volume of Rule 23 class actions filed concurrently with FLSA collective actions within the Eleventh Circuit based on this opinion.  Nevertheless, the circuits remain split on the issue and the Supreme Court has yet to review a decision resolving the conflict.

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Photo of Stephanie L. Adler-Paindiris Stephanie L. Adler-Paindiris

Stephanie L. Adler-Paindiris is a Principal and the Co-Leader of the firm’s Class Actions and Complex Litigation practice group. Her practice focuses exclusively on the representation of employers at the trial and appellate level in state and federal courts facing class and collective…

Stephanie L. Adler-Paindiris is a Principal and the Co-Leader of the firm’s Class Actions and Complex Litigation practice group. Her practice focuses exclusively on the representation of employers at the trial and appellate level in state and federal courts facing class and collective actions as well as claims of discrimination, retaliation or whistleblowing activity on an individual basis.  She also appears regularly before administrative judges and agencies.

Ms. Adler-Paindiris has conducted over a dozen trials before juries and judges in state and federal courts. In addition, Ms. Adler has participated in arbitrations and administrative hearings before the Florida Division of Administrative Hearings as well as AAA and FINRA. Ms. Adler-Paindiris has successfully defended appeals before four Courts of Appeals and has been admitted to the U.S. Supreme Court.

Ms. Adler-Paindiris also provides on-going legal support and counsel on a daily basis for many of her clients. She routinely provides training to managers and supervisors in all areas of employment law, including but not limited to, supervisory training, sexual and racial harassment prevention, disciplinary practice, documentation policies, safety and disability management.

Ms. Adler-Paindiris is also the Co-Leader of Jackson Lewis’ Women’s Interest Network or “WIN” working with the firm’s women attorneys and clients to increase diversity and inclusion efforts both internally and with our clients.

Ms. Adler-Paindiris is active in her community supporting a number of organizations related to her five children. She is also passionate about volunteering her time and services to the Wounded Warrior Project and other organizations.