One of the consequences of the rise of Fair Labor Standards Act litigation, particularly in the collective action context, has been an increase in the number of circuit court decisions addressing FLSA procedural issues.  In the past, many of these issues were discussed only in a handful of district court decisions, but now more of these cases are reaching the level of the court of appeals.  One such issue has been the need for lead plaintiffs in FLSA collective action litigation to opt into their own cases.

In Frye v. Baptist Memorial Hospital, Inc., Case No. 11-5648 (6th Cir. Aug. 21, 2012), the plaintiff brought a putative collective action challenging the employer’s “auto deduct” policy for meal periods and contending that that policy, as implemented, resulted in employees working through their meal periods and not getting paid.  Although the case was brought as a collective action, the plaintiff filed no “opt-in” or consent form agreeing to join his own lawsuit.

The district court granted conditional certification of the class but, following discovery, decertified it due to the lack of a uniform illegal policy.  Following the order decertifying the class, the court also granted summary judgment in the employer’s favor, finding that the plaintiff had never “commenced” the action properly as the FLSA required because he never filed a consent to be a plaintiff.  The plaintiff appealed both rulings.

The Sixth Circuit affirmed both holdings.  First, it found that the district court properly decertified the class because of the lack of a uniform illegal policy.  There is nothing illegal per se about an “auto deduct” policy, and the plaintiff failed to show that any uniform policy resulted in the putative class members not properly being paid.  This is in itself a favorable ruling for employers facing auto deduct cases.

The more interesting part of the holding, however, was its recognition that the plaintiff could not recover because he never filed the appropriate consent.  Under 29 U.S.C. section 256(a), an FLSA collective action is “commenced” for statute of limitations purposes “on the date when the complaint is filed, if [the plaintiff] is specifically named as a party plaintiff in the complaint and his written consent to become a party plaintiff is filed on such date in the court in which the action is brought” (emphasis added).  Lower courts have recognized that under this language even the named plaintiff must affirmatively consent to become a plaintiff before the statute of limitations stops running.  The Sixth Circuit found that the language of the statute was clear, and that the statute of limitations continued to run because the plaintiff had not opted in.  Further, the court found that the same rules applied even though the class was ultimately decertified.  Moreover, it rejected the plaintiff’s arguments that the filing of his deposition and similar matters would satisfy the requirement of filing a written consent.

Thus, as a result of problems with the proposed class and the failure to file a formal, written consent, the plaintiff’s claims were time-barred and properly dismissed.  One can only imagine the plaintiff’s attorney’s disappointment at going, with the stroke of a pen, from a certified class of hundreds to a summary judgment order against him on a single plaintiff case. 

The Bottom Line:  Even the named plaintiff in an FLSA collective action must file a written consent to join the action.