Employee Rights and Employment Policy Journal

State Wage-and Hour Law Class Actions: The Real Wave of "FLSA" Litigation?

By
Noah A. Finkel

Abstract

The number of collective actions filed in federal court seeking overtime pay under the federal Fair Labor Standards Act has increased to the point where they now outnumber the employment discrimination class actions filed in those courts. But those actions require employees to affirmatively "opt-in," and in many cases, only a small percentage of employees do so. State wage-and -hour laws, however, are different. Largely patterned after the federal Fair Labor Standards Act, cases brought under the same state wage-and-hour law usually offer greater potential recoveries by judgment or settlement to plaintiff employees and greater potential risk to defendant employers. This is largely because they are subject to an "opt-out" requirement under traditional class action rules, rather than the Fair labor Standard Act's "opt-in" requirement. This article explores those wage-and-hour class actions under state law, how they intersect with FLSA collective actions, and the unique class certification issues they pose.