The federal Fair Labor Standards Act (“FLSA”) permits employees to file suit on their own behalf and other “similarly situated” employees to recover unpaid or underpaid wages. A suit on behalf of other employees is referred to as a “collective action” under the FLSA, which is similar in concept to class actions but with its own special procedural rules. Employees are sent notice of the collective action and must return written consent to join. Potential damages are obviously greater in collective actions. The so called “pick off” strategy attempts to stop collective actions before they start – the employer makes an early offer of judgment to the employee who filed the lawsuit in an effort to “moot” the case in advance of other employees having an opportunity to join it. A recent 5-4 opinion by the U.S. Supreme Court in Genesis HealthCare Corp. v. Symczyk upheld the pick off strategy, but that decision had an interesting twist that calls into question whether the strategy will work in other cases. The employer’s offer of judgment in Symczyk had actually expired and was never accepted by the employee. For some unknown reason, however, the employee conceded in earlier litigation that the unaccepted offer of judgment had mooted the case. The Supreme Court thus assumed the case was moot and did not answer the more important question: Can an employee frustrate the “pick off” play by not accepting an employer’s offer of judgment? The four justices who dissented opined that cases are not moot when an employee refuses an offer of judgment and that the lawsuit or collective action will continue if the employee declines. Whether one or more other justices will agree to make a majority on that issue will have to wait another day.
Derrick is an associate at Sturgill, Turner, Barker & Moloney, PLLC and concentrates his practice on public entity and government defense, constitutional law and civil rights, and employment and labor law. He regularly defends local governments and officials against claims involving Section 1983, Title VII, the ADA, the ADEA, and the FLSA as well as the Kentucky Civil Rights Act and the Kentucky Wage and Hour Act.