In a move that could significantly increase the cost and expense of defending a Fair Labor Standards Act (“FLSA”) collective action, a federal district court Judge has dispensed with the traditional method for joining putative class members in an FLSA collective action. The Judge is going to permit employees to join if they submit a notice.  Such a move could lead to more protracted litigation and will certainly be appealed. In Turner, et al. v. Chipotle Mexican Grill, Inc., No. 1:14-cv-02612, Senior U.S. District Judge John L. Kane of the U.S. District Court for the District of Colorado granted the plaintiffs’ motion for conditional certification and judicial notice to the class. The case involves plaintiffs’ wage and hour claims against Chipotle under the Fair Labor Standards Act and the state laws of Arizona, California, Colorado and New Jersey. That the plaintiffs’ motion was granted is not, in and of itself, notable. But what is remarkable is the procedure applied for those who would seek to join the suit.

In granting the motion, Judge Kane “reject[ed] the premise that collective action certification under 29 U.S.C. § 216(b) must hew to the formalities of a two-step ‘certification’ process” that is now traditionally applied in such cases. Instead, he held that “[a]ny qualified Chipotle worker who comes forward as a ‘similarly situated’ employee may join in the action, subject to severance or other motion for misjoinder as the facts of the case develop.”

Putative class members will follow a different path to joining the Turner suit than in the usual course. Normally, on motion, the court considers plaintiff’s evidence that the group of potential plaintiffs – the  collective class – is “similarly situated.” If the evidence is sufficient to meet the relatively low bar at this stage, the court conditionally certifies the class. Then, notice of the suit and instructions on how to join is distributed to potential class members and the parties take discovery on the similarly situated issue. Later, typically on the defendant’s motion to decertify the class, the court assesses whether the action should proceed to trial as a collective action and applies a more stringent standard for certification.

In Turner, individuals will join the case simply by filing a notice with the court, no certification required. Judge Kane found that notice to potential plaintiffs was appropriate but referred the “form and mechanisms for effecting notice” back to the parties. Ultimately, the burden will be on the defendant to remove improperly joined plaintiffs from the action under Federal Rule of Civil Procedure 21 and/or to move for separate trials under Rule 42.

Litigating such a case would be a daunting proposition for any defendant, especially when put in the context of cases that often involve thousands of opt-in plaintiffs. The potential costs could make decisions about whether to settle even more painful. Such heavy motions practice would likely further protract the litigation and certainly bog down judges’ already full dockets. But, according to Judge Kane, this is the way a § 216(b) case is supposed to be litigated.

Judge Kane’s brief but colorful opinion pulls no punches in condemning the traditional two-step process. Judge Kane notes that he applied the now-rejected two-step certification process as recently as 2013. He explains this apparent conflict stating, “I simply observe that my thinking has evolved.”

As one might expect, Chipotle moved to certify the order for immediate interlocutory appeal and stay other proceedings. The motion was denied. We will report further as this case develops.