Eleventh Circuit Determines Written Consent is Sufficient for FLSA Party Status

On Wednesday, April 18, 2018, the Eleventh Circuit held — in a case of first impression in every circuit — that an “opt-in” plaintiff need only file a written consent to become a party-plaintiff under the Fair Labor Standards Act’s (FLSA) collective action procedures. Conditional certification is not necessary.

In Mickles, et al. v. Country Club Inc., case no. 16-17484, the plaintiff had filed an FLSA collective action alleging that she and those allegedly similarly-situated were misclassified as independent contractors and consequently deprived minimum wage and overtime premiums.

Three individuals subsequently filed written consents to opt into the litigation. Following discovery, the plaintiff moved to certify the collective action, which the district court denied as untimely. Thereafter, the plaintiff and defendant settled.

With respect to the three opt-ins who were not parties to the settlement, the District Court concluded that because it never determined these opt-ins were “similarly situated” to the named plaintiff, they were “never properly added as party plaintiffs to the collective action.”

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 for the District Court to either (a) dismiss the opt-in plaintiffs without prejudice, so they could pursue individual claims, (b) or to continue with their individual cases since discovery had been completed.

In light of this decision, employers should continue to be careful in handling settlements in FLSA collective actions in which individuals already have opted-in. Defendants in these cases also should be mindful of making clear that any dismissal of conditional certification should expressly include dismissal of any opt-in plaintiffs.