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.