Mosley v. Burns & Wilcox, LTD.

Employees pursuing unpaid-overtime claims under the Fair Labor Standards Act (“FLSA”) often bring their cases as collective actions, allowing similarly situated workers to receive notice and decide whether to join. But unlike a traditional class action, an FLSA collective action requires each participating employee to affirmatively opt in by filing written consent with the court.

In Mosley v. Burns and Wilcox, Ltd., the U.S. District Court for the Northern District of Georgia addressed a procedural question with potentially serious consequences for overtime claimants: whether a named plaintiff’s signed fee agreement could serve as the written consent required to commence her FLSA claim.

The court held that it could. Although the plaintiff did not file a separate document labeled “Consent to Join” when she filed the lawsuit, the court concluded that her signed fee agreement sufficiently showed her intent to participate in an FLSA collective action and had been filed before the limitations period expired.

The decision allowed the case to move forward and authorized notice to potentially affected current and former Burns & Wilcox employees.

Case Background

Maia Mosley filed the lawsuit in May 2025 on behalf of herself and other allegedly similarly situated employees of Burns & Wilcox.

The proposed collective includes employees who worked as assistant brokers, associate brokers, brokers, assistant underwriters, associate underwriters, or underwriters and allegedly were not paid overtime for work beyond 40 hours in a workweek.

Mosley alleged that Burns & Wilcox misclassified the employees as exempt from the FLSA’s overtime protections and failed to pay them one-and-one-half times their regular rates for overtime hours.

The court had already conditionally certified the collective in September 2026, but the notice process had not yet begun when Burns & Wilcox raised a limitations defense directed at Mosley’s own claim.

The Legal Issue: What Counts as Written Consent?

Under 29 U.S.C. § 216(b), an employee may not be a party plaintiff in an FLSA collective action unless the employee gives written consent to join and files that consent in the court where the action is pending.

The timing of that written consent matters because 29 U.S.C. § 256 provides that a named plaintiff’s claim begins on the complaint’s filing date only if the plaintiff is named in the complaint and files written consent on that same date.

If the written consent is filed later, the claim commences only on the date the consent is filed.

The standard FLSA limitations period is two years, though it extends to three years for a willful violation.

Mosley alleged a willful overtime violation, and the court treated September 22, 2026—the date of her last paycheck—as the deadline for commencing her claim.

Burns & Wilcox’s Argument

Burns & Wilcox argued that Mosley never timely commenced her FLSA claim because she did not file a separate written consent with her May 2025 complaint.

The employer noted that other opt-in employees filed standalone forms titled “Consent to Join,” while Mosley did not.

According to Burns & Wilcox, the absence of a separate consent meant Mosley’s claim was time-barred after September 22, 2026 and that she could no longer represent the collective.

The court agreed with one important premise of the employer’s argument: merely filing a collective-action complaint does not itself meet the FLSA’s written-consent requirement, even when the employee is the named plaintiff.

The court cited cases explaining that the statutory requirement applies to named plaintiffs as well as opt-in plaintiffs.

The Signed Fee Agreement Was Sufficient Consent

Mosley responded that a fee agreement she signed with her counsel met the written-consent requirement.

That agreement expressly authorized her FLSA claims to be part of a collective action and was filed with the court in February 2026 as an attachment to her motion for conditional certification.

The court emphasized that neither § 216(b) nor § 256 demands a particular format, title, or wording for the consent.

Instead, the statute requires a written consent to become a party plaintiff that is filed in the court where the action was commenced.

The court relied on Brown v. Dunbar & Sullivan Dredging Co., in which the Second Circuit found that a general retainer authorizing attorneys to pursue an employee’s FLSA overtime claim could qualify as written consent.

The court also cited Prickett v. DeKalb County, where the Eleventh Circuit concluded that broadly worded consent may cover FLSA claims later added during litigation.

In the court’s view, treating Mosley’s agreement as insufficient merely because it was not captioned “Consent to Join” or did not identify this lawsuit by name would impose a formalistic requirement not found in the FLSA’s text.

The Record Confirmed Mosley’s Intent to Participate

The court also found no genuine concern that Mosley had been named in the case without her knowledge or authorization.

Mosley participated in discovery, sat for a deposition, and confirmed that she had filed the case for herself and other similarly situated people.

The court concluded that these facts, along with the timely filed signed fee agreement, satisfied the purposes of the written-consent requirement: providing notice to the employer and confirming that the employee actually intends to participate in the case.

The Court’s Decision

The court denied Burns & Wilcox’s motion for summary judgment because Mosley’s signed fee agreement was a timely and legally sufficient written consent.

The court denied as moot the employer’s request to stay the action pending the summary-judgment ruling.

The court then ordered that collective-action notice be issued without further delay.

Burns & Wilcox was ordered to provide contact information for potential collective members, and those workers will receive court-approved notice by mail and email.

Potential collective members have 60 days to return a signed consent form, with a possible additional 30 days where mailed notices are returned as undeliverable.

What Mosley Means for FLSA Overtime Litigation

The ruling is procedural and does not determine whether Burns & Wilcox misclassified the proposed collective members or failed to pay overtime wages.

Still, the decision provides several practical reminders for FLSA litigants.

For Employees

• Written consent is essential.Employees seeking to join an FLSA collective action must provide written consent filed with the court; being listed in the complaint is not necessarily enough.
• The statute does not require a magic form.A writing may suffice if it clearly reflects the employee’s consent to participate as a plaintiff and is filed in the proper court.
• Timing remains critical.FLSA limitations periods continue to run until a valid consent is filed, which can affect the period for which an employee may seek unpaid wages.

For Employers

• Consent-related defenses may be significant, but courts may evaluate substance over labels.The court refused to treat the absence of a document titled “Consent to Join” as dispositive where a signed, filed agreement otherwise established the named plaintiff’s consent.
• An employee’s participation in the case can be relevant.Mosley’s deposition testimony and discovery participation supported the conclusion that she knowingly pursued the collective action.
• The merits remain separate from the consent issue.Burns & Wilcox continues to deny that it misclassified employees or failed to pay required compensation.

The Bottom Line

Mosley v. Burns and Wilcoxdemonstrates that the FLSA’s opt-in requirement must be taken seriously, including by named plaintiffs. But it also confirms that courts may look to the substance of a timely filed, signed document—not simply its title—to decide whether an employee gave the written consent required by §§ 216(b) and 256.

Employees who believe they have been denied overtime should act promptly, preserve pay and time records, and understand that filing a valid written consent may be necessary to protect their claims in an FLSA collective action.