We've written several times this year about the wide split in authority regarding whether a plaintiff in a wage and hour case may bring both a collective action under the FLSA and a Rule 23 class action with respect to claimed parallel violations of state law. Apart from concerns over the management of simultaneous "opt-in" and "opt-out" classes, many courts refusing to permit both have noted the legislative history of FLSA section 16(b), which created the collective action vehicle. These courts have found, based on the statute's history, that Congress passed section 16(b) in response to "a national emergency spawned by out-of-control litigation of employee minimum wage and overtime claims." Ellis v. Edward D. Jones & Co., 527 F. Supp. 2d 439, 450 (W.D. Pa. 2007).

Earlier this year, the Seventh Circuit concluded in Ervin v. OS Restaurant Services, Inc., 632 F.3d 971 (7th Cir. 2011), that both could be maintained, a decision we wrote about on January 26. Subsequently, as reflected in our blog entries on May 30 and June 6, both the Southern District of New York and the Middle District of Pennsylvania have found that the two are incompatible, and cannot be combined.

On June 8, 2011, the Western District of Pennsylvania, in Bell v. Citizens Financial Group, Inc.pdf, Civil Action No. 10-0320 (W.D. Pa. June 8, 2011), again weighed in on the issue and held that the two could not be combined. After reviewing the conflicting authority, it found that permitting both "would allow plaintiffs to evade the requirements of the FLSA," largely by "eviscerat[ing]" the purposes of the FLSA's opt-in requirement. It therefore denied certification of a state law class when it had already certified the class as an opt-in class under the FLSA.

The Bottom Line: The legislative history of FLSA section 16(b) makes it clear that the opt-in requirement was intended to limit overtime litigation, but there is a distinct split among courts whether the plaintiffs can avoid the requirement by seeking a state law class on the same issues.