FLSA Opt-in Actions Not to Be Confused With Opt-out Class Actions
By Cindy Caplan and Jing Li
On June 9, 2009 the Court of Appeal for the Second Appellate District clarified the differences between a FLSA opt-in action and an opt-out class action, holding that actions under the Fair Labor Standards Act (“FLSA”) cannot be maintained as class actions under the California Rules of Civil Procedure.
In Randy Haro v. City of Rosemead, plaintiffs Randy Haro and Robert Ballin filed a collective action under 29 U.S.C. § 216(b), also known as the Fair Labor Standards Act of 1938. Plaintiffs later attempted to certify the action as a class under California Code of Civil Procedure section 382. The trial court denied plaintiffs’ motion for class certification, finding that the Plaintiffs had improperly attempted to certify their FLSA action as a class action.
The Court of Appeal noted that FLSA actions are collective actions where potential plaintiffs must opt in in order to be a part of the action, whereas in a class action, potential plaintiffs must opt out if they do not wish to be a member of the class. The Court made clear that while the critical difference between FLSA actions and class actions is the opt-in versus the opt-out feature, there are other important differences as well, such as the difference in the tolling of the statute of limitations, the difference in the trial court’s involvement in the process of notifying potential additional plaintiffs, and the definitions of parties “similarly situated.”
Due to the significant differences between FLSA collective actions and class actions under Section 382, as well as the absence of any established procedures for an "opt in" class action in the California Code of Civil Procedure, the Court held that FLSA collective actions cannot be maintained as class actions.