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Working closely with the excellent attorneys at The Washington Lawyer’s Committee for Civil Rights and Urban Affairs, and acting on behalf of two of my clients, I recently succeeded in having the United States District Court for the District of Maryland certify a collective action in a case which accuses a company and its managers of failing to pay overtime pursuant to the federal Fair Labor Standards Act (FLSA).


The court’s decision to preliminarily certify a collective action class means that, in addition to our current clients, other employees who originally brought the lawsuit and were allegedly denied thousands of dollars in overtime will now be asked if they want to participate in the case.  In its brief opinion, the court emphasized that the standard for initially certifying a collective action is relatively low.  This is far different from the situation in federal class actions, which recent U.S. Supreme Court cases have made increasingly difficult to prosecute.  A collective action is a special procedural device created by the FLSA and is different from (and older than) the more familiar collective action procedure.

The threat of collective actions greatly increases the potential costs of FLSA violations to employers, who may find large number of current and former employees joining existing lawsuits.  In effect these employees stand to receive a substantial payout if the lawsuit succeeds but are normally not on the hook for attorneys’ fees if the case fails.  Moreover, damages under the FLSA are doubled and attorneys’ fees, which can be higher than the damage award itself, must be awarded to a prevailing plaintiff (but generally cannot be awarded to a company that successfully defends itself).

Prudent employers pay careful attention to complying with the FLSA’s overtime (and separate minimum wage) requirements.  Generally, overtime must be paid to most employees who actually work more than forty hours in a workweek, but the FLSA’s specific requirements can be confusing.  Consequently, some businesses violate the FLSA inadvertently.  Other companies, however, know that they are supposed to pay overtime and simply refuse to do so.  Whether a violation is inadvertent or intentional, the FLSA’s collective action provisions can make failure to pay overtime a costly proposition.


Disclaimer:  (i) The results referred to refer to only specific results in a specific case; (ii) results in any case depend upon a variety of factors unique to each case; and (iii) results in this case do not guarantee or predict a similar result in any future case undertaken by The Kaplan Law Firm or Matthew B. Kaplan.

The author and person responsible for this post is Matthew B. Kaplan of The Kaplan Law Firm.  Mr. Kaplan’s address is 1100 N Glebe Road, Suite 1010, Arlington, VA 22205.