Seyfarth Synopsis: In a first impression case, the Eleventh Circuit held that an “opt-in” plaintiff is only required to file a written consent to become a party-plaintiff in a collective action under the FLSA, and that the lack of conditional certification does not affect that status.

At or within a few weeks of the filing of a purported FLSA collective action, a plaintiff’s lawyer often files pleadings signed by other current or former employees in which they consent to join the case as “opt-in” plaintiffs. Usually — but not always — a motion for conditional certification follows, with the opt-in plaintiffs providing supporting affidavits for that motion.

But what happens to those opt-ins if the case is never conditionally certified? No appellate court had ever addressed this question until the Eleventh Circuit did so last week in Mickles et al. v. Country Club Inc.

There, Mickles worked as an exotic entertainer at the Goldrush Showbar and alleged that she and those allegedly similarly-situated were misclassified as independent contractors and consequently deprived of minimum and overtime wages. After filing her complaint, three “opt-in” plaintiffs filed written consents to join the litigation. The case continued on through discovery. After discovery, Mickles moved for conditional certification, but the district court determined the motion was “nearly eight months” too late.

In his holding, Judge Jones reasoned that the Northern District of Georgia’s Local Rules require motions for conditional certification be filed within 30 days of the commencement of discovery unless court permission is secured, which did not occur here.

Following the denial of conditional certification, the company filed a motion for clarification, inquiring as to whether the opt-in plaintiffs remained parties in the action. In response, Judge Jones ordered that the opt-in plaintiffs “were never adjudicated to be similarly situated to Mickles, and, therefore, were never properly added as party plaintiffs to the collective action.” (Mickles and the company then reached a settlement in which the three opt-in plaintiffs did not participate.)

The three opt-in plaintiffs appealed to the Eleventh Circuit, which reversed, holding that “those who opt in become party plaintiffs upon the filing of a consent and that nothing further, including conditional certification, is required.” The Eleventh Circuit remanded the case to the district court to either (a) dismiss the opt-in plaintiffs without prejudice, so they could pursue individual claims, or (b) to continue with their individual cases since discovery had been completed.

The Eleventh Circuit upheld Judge Jones’ ruling, finding that he did not abuse his discretion in applying the local rule. More broadly, the Eleventh Circuit made clear that opt-in plaintiffs are “parties” to a case regardless of conditional certification, and re-affirmed various Supreme Court and appellate authorities that a motion for conditional certification is not a required step in multi-claimant FLSA litigation and that conditional certification is merely a case management tool for a plaintiff to be able to send a court-approved notice to employees.

At first blush, Mickles is a defeat for an employer: a lawsuit it thought was over was revived. But on closer examination, the Mickles case provides several helpful points for employers defending FLSA collective actions:

  1. The “party” is not over if an employer defeats conditional certification. Opt-ins continue to have party status even in the absence of conditional certification, so when an employer opposes conditional certification, it should ask that the opt-ins be dismissed without prejudice so that it would only have to defend the claim of the named plaintiff (dismissed opt-ins often will not bother to file their own individual lawsuits).
  2. An opt-in plaintiff in an FLSA case is not like a Rule 23 class member. Each one is a full-fledged “party” much like a named plaintiff. As such, each one is a legitimate source of discovery from which an employer can learn more about the nature of the claims being brought against it and how similar the opt-ins and named plaintiffs are to each other, and from which it may be able to obtain helpful admissions in opposing certification, defend the case on the merits, and/or limit exposure. In particular, this underscores that (a) a company expecting to oppose a motion conditional certification motion ought to take the deposition of not only the named plaintiff, but any early opt-in as well and (b) even after conditional certification, an employer should be able to cast a wide net in seeking discovery from opt-in plaintiffs, especially if it can do so in a cost-effective manner.
  3. The local rules can prove to be a helpful weapon. Depending on the jurisdiction, an employer may be able to raise a timeliness defense if plaintiff’s motion for conditional certification is filed more than 30 days after discovery commenced without securing court permission. Some courts have local rules providing similar timelines for class certification motions. These rules should not be forgotten.