Florida Lawyer News Services | Robbins Equitas

A Fair Labor Standards Act (FLSA) Update

Defending FLSA “Collective Actions”

By: Vincent Lynch, Managing Partner of Lynch & Robbins, P.A.

Employers are facing a flood of lawsuits under the FLSA, 29 U.S.C. Sections 201-219, claiming a failure to pay overtime, minimum wage, improper FLSA exemption status or related claims.  Lynch & Robbins knows this a constantly changing and prolific area of employment law that exposes businesses to expensive lawsuits and settlements.  This update summarizes some of the common issues raised in FLSA lawsuits, identifies strategies to prevent or effectively defend such lawsuits, and presents positive solutions on how to respond to the ever prevalent FLSA Collective Action.  For more information, visit us at www.FLSADefense.com.

FLSA Lawsuits Remain on the Rise

Thousands of FLSA lawsuits are filed annually in the United States in Federal and State Court.  Over 100 FLSA cases were filed against Florida companies in Federal Court in June of 2010 alone.  Over 20% of all FLSA lawsuits are filed in Florida.

Most FLSA lawsuits are filed as a Collective Action—where one employee or former employee sues a company seeking damages for himself and anyone else that is similarly situated to the Plaintiff that filed the action.  Attorney’s fees can be awarded to the employee and their lawyer if they prevail.

Florida Federal Judges Order Special Procedures

In response to the volume of FLSA filings over the last few years, many Federal Judges across Florida including in Tampa, Orlando, Miami and Jacksonville issue special scheduling orders to manage these cases and to encourage settlement.  One of the requirements imposed early in FLSA cases is for the employee(s) to file a verified summary or affidavit of the hours worked and amount of pay they claim they were denied.  Employers must file responses to the employee’s claims and counsel must meet in person for a settlement conference.  Some Judges require a settlement conference in the presence of the Judge early in a case.

Conditional Certification and Notice to Potential Class Members

Employees and their lawyers often ask the Court to conditionally certify the case as a Collective Action and order notice to all of the company’s former and current employees who are similarly situated to the Plaintiff.  Courts routinely allow this because the legal standard for authorizing conditional certification and class notice is very lenient.

However, employers can defend themselves from this process. Fortunately, the Court has absolute discretionary power to deny the sending of notice to potential class members in an FLSA collective action. Rappaport v. Embarq Mgmt. Co., No. 6:07-cv-468-Orl-19DAB, 2007 WL 4482581, at *4 (M.D. Fla. Dec. 18, 2007).  The employer can argue that the lack of evidentiary support for a motion seeking to conditionally certify a collective action can lead to significant inefficiency and waste of litigant and judicial resources dealing with conditionally certified collective actions that have virtually no chance for final certification.

Effectively and Efficiently Defending an FLSA Lawsuit

In many instances, the key to efficiently defending an FLSA case is to immediately determine if any actual FLSA violations exist and remedy those claims voluntarily.  Lynch & Robbins evaluates each FLSA case for our clients independently and creatively based upon the particular circumstances present.  We have sometimes immediately asked the Court to stay (cease activity in the lawsuit) pending our client’s efforts to investigate the alleged claims and fix any problems.  This can greatly reduce the fees and costs incurred by both sides.  We are also able to aggressively defend and seek dismissal of any claims that lack merit and take strong action that may prevent the case from being treated by the Court as a Collective Action.

FLSA Lawsuit Prevention

Florida businesses can and should conduct periodic audits of their pay practices to catch any wage and hour issues before getting sued.  The United States and Florida Departments of Labor have useful information and tools on their websites at www.dol.com and www.stateofflorida.com.

Our Experience

Lynch & Robbins represents many companies hit with FLSA individual and Collective Actions.   We are committed to providing our clients the most current methods for preventing and defending claims under the FLSA and other employment laws.  For more information visit www.FLSAdefense.com.

Vincent Lynch is the Managing Partner of Lynch & Robbins.  In addition to representing businesses on FLSA matters, his practice includes complex federal and state court litigation, arbitration and administrative law.  Mr. Lynch has over 18 years of legal experience, and served as a state and Federal Court law clerk. He has been a member of The Florida Bar since 1992.

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