What recourse is available to workers who experience the same illegal overtime pay practices while working for an employer? When there are multiple people who all claim that they have been denied overtime pay, the best avenue to take is usually to file a collective action lawsuit on behalf of themselves and all others similarly situated. For a collective action alleging unpaid overtime compensation, the lawsuit is filed under the Fair Labor Standards Act (“FLSA”), which requires employers to pay its non-exempt employees time and a half the employees regular rate of pay for all hours worked over 40 hours. Section 216(b) of the FLSA provides an opt-in procedure for other similarly situated employees to join the lawsuit. Courts favor FLSA collective actions because it reduces costs for individual lawsuits and promotes judicial efficiency in having all the lawsuits proceed as one action. To determine whether to certify the FLSA lawsuit as a collective action, courts in the Fifth Circuit use a two-step approach. Kibodeaux v. Wood Grp. Prod., No. 4:16-CV-3277, 2017 WL 1956738, at *1 (S.D. Tex. May 11, 2017).

Step 1: Lenient showing 

Under this first step, a plaintiff has to make a minimal showing of three elements:

1. That there is a reasonable basis for crediting assertions that aggrieved individuals exist;

Here, a plaintiff only has to show that it is reasonable to believe that there are other individuals who have also be subjected to the same unlawful policy or plan. At a minimum, the plaintiff has to identify other employees who fall under the same policy or plan. 

2. Those aggrieved individuals are similarly situated to the plaintiff; and

For the class representative to be similarly situated to the other opt-in class members, the plaintiff has to present evidence of a class-wide policy. The plaintiff has to show that the other members are similarly situated in terms of job requirements and payment provisions. Importantly, the job positions do not need to be identical, but only similar. 

3. Those individuals want to opt-in to the lawsuit. 

In addition to the two elements above, the plaintiff has to offer evidence that those similarly situated individuals want to join the lawsuit. 

Step 2: Decertification 

At this stage, once discovery is largely completely, the defendant can move to decertify the conditionally certified class. “Neither stage of certification is an opportunity for the court to assess the merits of the claim by deciding factual disputes or making credibility determinations.” McKnight v. D. Houston, Inc., 756 F.Supp.2d 794, 802 (S.D. Tex. 2010). If discovery reveals the the plaintiff and the putative class members are not similarly situated in relevant respects to the claims and defenses asserted, the defendant can then move to decertify the conditional class. 

The importance of collective actions is that it allows multiple individuals to join the same lawsuit as opposed to individual lawsuits. If you and others similarly situated have been denied overtime pay and want to purse a lawsuit, consider speaking with an attorney today. Josh Borsellino is a FLSA attorney that fights for the rights of workers. He offers free consultations and can be reached at 817.908.9861 or 432.242.7118.