Tag Archives: Opt-in Consent

March 13, 2011 · 9:56 am

M.D.Fla.: Opt-in Plaintiffs Who Filed Consents to Join Have Same Legal Status As Named Plaintiff Under FLSA

Norena-Giraldo v. Inglese Worldwide Corporation

In this case the court was faced with the issue of what exactly the legal status Opt-in Plaintiffs are, with respect to the named-Plaintiff, in a case that has not been certified as a collective action.  Initially, the court had denied Plaintiff’s Motion for a Final Default Judgment as to Opt-in Plaintiffs, while entering same as to the named-Plaintiff only.  However, the court invited reconsideration of the issue of the Opt-in Plaintiffs’ status.  Upon reconsideration, the court agreed that the Opt-in Plaintiffs shared the same legal status under the Fair Labor Standards Act (FLSA) as the named Plaintiff and thus, amended its prior order and entered judgment (as to liability) on behalf of the Opt-in Plaintiffs as well.

Noting that the issue was not so much whether the Opt-ins were party Plaintiffs, but rather what “sum certain” such Opt-in Plaintiffs were entitled to, the court, upon reconsideration set the case for a hearing to determine the amounts of same, recognizing that such Opt-in Plaintiffs essentially stood in the same shoes as the named-Plaintiff.

Click Norena-Giraldo v. Inglese Worldwide Corporation, to read the entire opinion.

 

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January 9, 2010 · 3:08 pm

N.D.Tex.: FLSA Plaintiffs In Second-Filed Case Cannot Be Consolidated Into First-Filed Case, Where They Oppose Such Consolidation

Mumphrey v. CSA-Credit Solutions of America, Inc.

This case presented an interesting issue to the Court:  where 2 similar FLSA claims are filed by similarly situated employees in separate cases, may the Court consolidate the second-filed case into the first-filed case, notwithstanding Plaintiff (and opt-in Plaintiffs’) opposition to same.  The Court answered the question in the negative, and denied Defendant’s Motion to bifurcate the Plaintiff’s claims (separate FLSA unpaid wages claims that were identical to the first-filed case from the retaliation claims brought solely in the second case).

The Court reasoned, “[t]he collective action provision of the FLSA explicitly states that “[n]o employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.”  Consolidation of the Mumphrey FLSA claims with the Willins FLSA claims would de facto force Plaintiffs to opt in to a collective action without their consent, in contravention of the FLSA.  The Court therefore finds that the Plaintiffs’ FLSA claims should not be bifurcated from their retaliatory termination claims and consolidated with the Willins case against Plaintiffs’ wishes.

For the reasons stated above, CSA’s Motion to Bifurcate is DENIED. Plaintiffs’ claims will proceed as filed in this case.”

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April 7, 2009 · 11:12 am

D.Mass.: Equitable Tolling Applied To Preserve Statute Of Limitations Of Plaintiffs Who Previously Filed Opt-in Consents And Promptly Re-filed Their Consents In New Case

McLaughlin v. Harbor Cruises LLC

The defendants moved for summary judgment as to seven individuals who have purported to opt into this collective action brought pursuant to the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 216(b). There was no dispute that these plaintiffs did not file their “opt in” consents within the applicable limitations period. See29 U.S.C. § 255(a) (stating that an action for unpaid overtime compensation must be commenced within two years after the cause of action accrued, or within three years if the cause of action arises out of a willful violation). However, the plaintiffs opposed the motion and argued that the statute of limitations should be equitably tolled to permit them to remain in the FLSA class. The Court held that 2 opt-ins who had previously attempted to opt-in to a prior case, which was not ultimately certified reasonably relied on their prior consents and thus their statute of limitations was equitably tolled.

“Equitable tolling is justified as to two of the seven opt-in plaintiffs at issue, however. Both Susan Cardenas and John J. Hamm III filed consents in the previous McLaughlin action that would be timely under the possible three year statute of limitations for willful violations. SeeNo. 03-CV-10905 (D. Mass. Jan 20, 2006) (notices of consent to opt in). This Court subsequently ruled that the previous McLaughlin action could not proceed a collective action under the FLSA, see No. 03-CV-10905-GAO, 2006 WL 1998629 (D.Mass. July 17, 2006), but it was reasonable for Cardenas and Hamm to have relied on their consents filed in that case, rather than to file their own individual actions. They promptly re-filed their consents in this action. The statute of limitations is therefore equitably tolled as to both Cardenas and Hamm from the filing of their consents in the previous action on January 20, 2006 to this Court’s order dismissing the previous action on July 17, 2006.”

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