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Ninth Circuit Holds That FLSA Collective Action and State Law Class Action Are Not Inherently Incompatible

In Class Notice, Collective Action, FLSA, Opt-in, Opt-out on April 12, 2013 at 5:17 pm
Threatened Class Action Against Second Life Br...

Threatened Class Action Against Second Life Brautigan & Tuck Holdings (Photo credit: TaranRampersad)

In a wage and hour class action, Bush v. Integrity Staffing Solutions, Inc., No. 11-16892, __ F.3d __ (9th Cir. Apr. 12, 2013), a Ninth Circuit panel today affirmed in part and reversed in part the district court’s dismissal of warehouse workers’ claims for unpaid wages under the Fair Labor Standards Act and Nevada state law.  The court reversed the dismissal of state law claims on the basis that they would be certified using different class certification procedures than the federal wage-and-hour claims.  Agreeing with other circuits, the panel held that a FLSA collective action and a state law class action are not inherently incompatible as a matter of law even though plaintiffs must opt into a collective action under the FLSA but must opt out of a class action under Federal Rule of Civil Procedure 23.

Our sister circuits have correctly reasoned that FLSA’s plain text does not suggest that a district court must dismiss a state law claim that would be certified using an opt-out procedure. Its opt-in requirement extends only to “any such action” – that is, a FLSA claim. . . . Nor does the legislative history of Section 216(b) support the view of some district courts that allowing both actions to proceed simultaneously “would essentially nullify Congress’s intent in crafting Section 216(b) and eviscerate the purpose of Section 216(b)’s opt-in requirement.”

Judges

Before: Jerome Farris, Sidney R. Thomas, and N. Randy Smith, Circuit Judges. Opinion by Judge Thomas.

The case was argued and submitted at Stanford Law School.

Attorneys

Mark R. Thierman, Jason J. Kuller, Joshua D. Buck (argued), Thierman Law Firm, P.C., Reno, Nevada, for Plaintiffs- Appellants.

Rick D. Roskelley (argued), Roger L. Grandgenett II, Cory Glen Walker, Littler Mendelson, P.C., Las Vegas, Nevada, for Defendant-Appellee.

By CHARLES H. JUNG

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