Sixth Circuit Makes Some Important Observations About FLSA Collective Actions

I recently re-read the Sixth Circuit’s decision in O’Brien v. Ed Donnelly Enterprises, Inc., 575 F.3d 567 (6th Cir. 2009), and was struck by some of the important observations it makes about the FLSA’s collective action device. Reviewing the district court’s “second-stage” decertification of an FLSA class, the Sixth Circuit (which covers Kentucky, Ohio, Michigan, and Tennessee) made the following observations, all of which are useful to plaintiffs-side FLSA lawyers. Firsr, the Court recognized that the FLSA decertification analysis is less stringent than the Rule 23 class action analysis. See 575 F.3d at 584-85. Second, the court observed that FLSA classwide proof often can be proven through representative testimony. In particular, “it is possible that representative testimony from a subset of plaintiffs could be used to facilitate the presentation of proof of FLSA violations, when such proof would ordinarily be individualized.” Id. at 585. Third, the court endorsed the use of subclasses in FLSA collective actions, observing that “a district court should examine whether partial decertification is possible, when faced with a situation where a subset of the plaintiffs fail to allege violations of of the FLSA.” Id. at 586. Fourth, the court summarized the public policy behind FLSA collective litigation, recognizing that “the collective action serves an important remedial purpose” by enabling a “plaintiff who has suffered only small monetary harm [to] join a larger pool of similarly situated plaintiffs.” Id. at 586. In sum, O’Brien is an important for Ohio, Michigan, Kentucky, and Tennessee overtime lawyers/attorneys.

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