Class and Collective Actions

Wage and Hour Class Action and FLSA Collective Law

Dolley Law, LLC located in St. Louis, Missouri, is accomplished in aggressively litigating class and collective actions under federal and state wage and hour laws (overtime and minimum wage class claims). We have delivered excellent results in some of the most challenging and complex wage and hour cases nationwide. We know the substantive and procedural rules and rights at issue in such legal proceedings. Such knowledge and experience is critical to successfully navigating and resolving class and collective action disputes, through settlement, trial or otherwise.

Class Actions vs. Collective Actions

Aside from individual claims, wage and hour cases are often brought as class actions or FLSA collective actions. Despite some similarities, these two types of actions are very different in many material ways.

Class Actions

The requirements to bring a class action have evolved over the decades since the Federal Rules of Civil Procedure first incorporated them in 1938. In 1966, significant revisions to requirements for class actions occurred. Since then, Federal Rule of Civil Procedure 23 has governed class actions brought in federal court. State procedural rules on class actions often model most, if not all, of their own requirements based on Rule 23. In pursuing or defending a class action under state law, it is important to understand when and how these requirements differ. Attorneys at our Firm are very familiar with both federal and state rules governing class actions, including Rule 23 of the Federal Rules of Civil Procedure and Rule 52.08 of the Missouri Rules of Civil Procedure.

Class actions begin when an individual or group of individuals file a complaint in federal or state court, claiming that the causes of action therein should be adjudicated on a representative or group-wide basis, consistent with all the requirements of the relevant procedural rule governing class actions. Rule 23(a) and Missouri Rule 52.08(a) contain the same four (4) basic requirements for class actions:

  • the class is so numerous that joinder of all members is impracticable;
  • there are questions of law or fact common to the class;
  • the claims or defenses of the representative parties are typical of the claims or defenses of the class; and
  • the representative parties will fairly and adequately protect the interests of the class.

These four requirements are known, respectively, as: (1) numerosity; (2) commonality; (3) typicality; and (4) adequacy of representation. In addition, Rule 23(b) and Missouri Rule 52.08(b) are identical in terms of describing the types of actions appropriate for class action treatment. In 2005, the Missouri Court of Appeals noted that Missouri courts could consider federal case law interpreting Rule 23 in interpreting Missouri Rule 52.08 because the rules are identical. Craft v. Phillip Morris Cos., Inc., 190 S.W.3d 368, 376 (Mo. Ct. App. 2005).

However, some requirements related to class actions are not identical between federal and state rules. For example, Missouri Rule 52.08 does not have special provisions on the appointment of class counsel, settlement, and attorneys' fees and costs, like Rule 23 does. Rule 23 has a specific provision on class action settlements (i.e., Rule 23(e)), appointment of class counsel (i.e., Rule 23(g)), and attorneys' fees and costs (i.e., Rule 23(h)). While Missouri Rule 52.08 does not have provisions specific to these issues, Missouri courts have provided guidance. In 1997, the Missouri Court of Appeals adopted federal standards for approving class action settlements, as articulated and explained in the United States Supreme Court case, Amchem Products, Inc. v. Windsor, 521 U.S. 591 (1997). See State ex rel. Byrd v. Chadwick, 956 S.W.2d 369, 377-89 (Mo. Ct. App. 1997).

Notwithstanding some nuanced differences between federal and state rules, both proceed in a similar fashion. Once a party files a class action complaint, they must file a motion with the Court, supported with some evidence supporting class action treatment and their class-based allegations. Typically, an evidentiary hearing follows the filing of such a motion, at which the parties dispute whether all class action requirements have been met. This is usually a critical hearing in case, as it will decide the nature and scope of discovery and litigation to follow. If a motion for class certification is denied, the defendant will avoid significant time and expense associated with defending a class action. However, if the motion for class certification is granted, a case may expand significantly in terms of its nature and scope, especially during the discovery process. Thus, it is critical to have knowledgeable and experienced counsel early on in any case that contains class-based allegations.

Assuming the Court grants a motion for class certification, the Court must approve a specific written definition and description of the individuals who belong to the class. This is a very important part of any class action, as this written definition will determine whose legal rights and obligations are being decided by the case. This process raises potential due process concerns because it is an exception to the general rule that an individual may not be bound by a judgment unless he or she is a party to the lawsuit in which the judgment is rendered. In other words, when a Court certifies a class action and approves a class definition, many individuals—sometimes many thousands of individuals—will have their legal rights and obligations decided without them ever being a named party in the lawsuit.

To address this concern, courts oversee the process by which such individuals are notified of the pending class action lawsuit that will decide or impact their legal rights and obligations. The process of drafting, approving and disseminating such written notice to a certified class is another hotly contested issue in class action litigation. Once individuals are notified of a class action, they typically face a basic decision: (1) do nothing and continue to be part of the class action; or (2) request to be excluded from the class action (i.e., opt out of the class action). Most class actions do not see significant percentages of opt out's, which again stresses the importance of how the class is defined and how and what notice is issued.

Class-wide discovery and trial will follow the notice period. However, at any point during this process, a defendant may ask the Court to decertify the class action for one or more reasons. Like motions for certification, motions for decertification are often fact-intensive efforts in relation to applicable class action requirements and often follow the parties engaging in a substantial amount of discovery class-wide.

In short, class actions involve many complex procedural and substantive issues and steps that decide or impact the legal rights and obligations of large groups of individuals who are not named in a lawsuit. The stakes are always high in these cases, as are the legal requirements and standards for proceeding as a class action.

Collective Actions

Many—if not most—group-based proceedings in wage and hour matters under the FLSA are collective actions. Collective actions, like class actions, are procedural devices in the law that are used to address and decide issues of fact and law common to a group of individuals. However, unlike class actions, collective actions originate from statute, not the common law or rules of civil procedure. Understanding their different origins informs many of their substantive and procedural differences.

In the wage and hour context, the Fair Labor Standards Act ("FLSA") is the statute that created the right for individuals to proceed collectively in seeking recovery of unpaid wages. Section 216(b) of the FLSA provides that an employee may proceed individually and on behalf of those individuals who are "similarly situated." But neither the FLSA nor its legislative history defines or explains what it means to be "similarly situated."

Over decades, many courts have wrestled with the meaning of this phrase and reached different conclusions. Some courts have attempted (and continue to attempt) to analogize collective actions under the FLSA to class actions under Rule 23. Other courts have rejected (and continue to strongly reject) such analogies. This difference of opinion among courts continues to exist to some extent on certain aspects of these proceedings; however, nearly all courts recognize that the "similarly situated" requirement under Section 216(b) is separate from, and not identical to, the more rigorous class action requirements under Rule 23.

Like class actions, collective actions begin with a complaint filed by an individual or group of individuals, claiming that the lawsuit should be decided on a group-wide basis. However, the procedure for collective actions then begins to differ from class actions. Unlike class actions, collective actions often involve two different types of "certification": (1) conditional certification; and (2) final certification. This difference is directly tied to substantial differences between class actions and collective actions.

Typically, early on in a collective action lawsuit, a party will ask the Court to certify a defined group of people alleged to be "similarly situated" in relation to the legal claim at issue. This is known as "conditional certification." While somewhat analogous to a class action wherein a party asks the Court to certify a defined group of people, conditional certification differs from class certification in significant ways in terms of its purpose and legal effect. The purpose of conditional certification is primarily for a plaintiff to obtain authority from the Court to notify other individuals alleged to be "similarly situated" of the pending dispute and their right to decide whether to opt into the lawsuit. Unlike class actions, when a Court conditionally certifies a defined group, the Court is not authorizing the adjudication of the group's rights and responsibilities; rather, it is only authorizing a party to send notice to this group of people to notify them of their right to decide whether to opt into the lawsuit.

In other words, in a class action, notice serves to let individuals know they must affirmatively opt out of the lawsuit if they do not wish to be bound by it, whereas, in collective actions, notice serves to let individuals know they must affirmatively opt into the lawsuit if they wish to be bound. Because of this "opt out" vs. "opt in" difference, there are far fewer "due process" concerns about deciding the rights of absent parties in collective actions, because the only parties bound by a judgment in such actions are those individuals who affirmatively decided to be in the case.

With less due process and other concerns at stake, the test for conditional certification is widely recognized as more "lenient" than the test for class certification. Most courts recognize that a party seeking conditional certification need only come forward with "substantial allegations" or other evidence that shows the proposed group of individuals are sufficiently "similarly situated" to warrant the issuance of notice. See, e.g., Beasley v. GC Services LP, 270 F.R.D. 442, 444 (E.D. Mo. 2010). Some courts have noted this "lenient" standard also serves the remedial purposes of the FLSA itself.

Nonetheless, like class actions, a defendant may thereafter move to decertify the conditionally certified collective action. At this second stage of the proceedings, courts will often consider and scrutinize not only the allegations and evidence for common issues of fact and law, but also the ultimate merits of the claims at issue. See id. at 445. And, in light of many factors (including case management considerations), the court will decide, at that point, whether the claims of those who have opted into the suit can be collectively adjudicated at trial in a fair and efficient manner.

Our Services

A crucial aspect of class or collective action lawsuits is the ability to understand the substantive law behind the claim(s) while navigating the complex procedure of representative proceedings. Our Firm's extensive experience and knowledge of class and collective action wage and hour law gives us an edge in such cases. We are very familiar with strategies at play in these proceedings, like the forum-shifting provisions of the Class Action Fairness Act ("CAFA"), a federal law which provides federal courts with jurisdiction over certain types of class actions. We know how to invoke such laws to protect interests and secure an appropriate forum.

Contact Us

The attorneys at our Firm have both the knowledge and experience to effectively guide you through wage and hour class and collective actions. To set up a consultation, please contact Dolley Law, LLC at (314) 645-4100 or email at All legal consultations are held strictly confidential.

Why Choose Us?

  • Nationally Recognized for Labor & Employment Law
  • We Uphold a Strong Standard for Professionalism
  • Serving St. Louis & Kansas City Since 2002
  • We Have Worked on Thousands of Employment Matters

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