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11th Circuit: 'Carryover Consent' Theory in FLSA Collective Actions Rejected

By Lawrence Peikes and Meghan D. Burns   5/16/2008

The 11th U.S. Circuit Court of Appeals blocked employees’ attempt to use consent forms filed in a previously dismissed collective action wage and hour case as authorization to pursue nearly identical lawsuits.

In 2000, 12 former and current employees of Cagle’s Inc. and Equity Group-Georgia Division LLC brought a collective action under the Fair Labor Standards Act (FLSA), seeking compensation for time spent “donning” (i.e., putting on) and “doffing” (i.e., removing) protective clothing they were required to wear while working on the chicken processing line (the “Anderson litigation”).

In accordance with the FLSA’s procedural requirements for collective actions, plaintiffs’ counsel sent notices of the suit to all affected current and former Cagle’s and Equity Group employees together with a “consent to become a party plaintiff” form. The form notified the employees of the Anderson litigation and sought their individual consent to pursue the FLSA claims alleged in that case on their behalf.

Approximately 1,800 opt-in plaintiffs completed a consent form and eventually participated in the Anderson litigation. After discovery was completed, the district court granted the defendants’ motion to sever the claims against them and to decertify the collective action. Cagle’s Inc. then settled with the named plaintiffs and the district court granted Equity Group’s motion for summary judgment, thereby bringing the Anderson litigation to a conclusion.

Approximately two months after the district court issued its decertification order in the Anderson litigation, the attorneys representing the plaintiffs in that action filed two substantially identical complaints against the same defendants. The new cases were titled Albritton v. Cagle’s Inc. and Abdullah v. Equity Group-Georgia Division LLC. Both suits were purportedly initiated on behalf of several hundred employees and former employees, all of whom were former opt-in Anderson litigation plaintiffs. Moreover, the complaints alleged the same facts and made the same claims as were raised in the Anderson litigation and invoked the FLSA’s collective action provision, 29 U.S.C. §216(b).

Section 216(b) of the FLSA provides that no employee may be a “party plaintiff” in an FLSA collective action until the employee’s written consent is filed with the court where the action is pending. Because plaintiffs’ attorneys did not file the requisite consent forms in either of the two new cases, the district court granted defendants’ motions to dismiss each case for failure to comply with Section 216(b).

On appeal, plaintiffs asserted that the Anderson litigation consent forms “carried over” to the subsequent lawsuits. The 11th Circuit decided that the forms satisfied Section 216(b)’s written consent requirement because the letters were sent to the Anderson litigation opt-in plaintiffs, offering them the opportunity to opt out of the subsequent lawsuits.

The court noted that plaintiffs’ theory, if accepted, would effectively convert Section 216(b)’s opt-in requirement to an opt-out procedure. The 11th Circuit noted, moreover, that the Anderson litigation consent form was narrowly crafted to authorize participation in that particular suit only. The district court’s determination that plaintiffs’ counsel had not complied with Section 216(b)’s collective action procedures was therefore affirmed.

Albritton v. Cagle’s Inc., 11th Cir., C.A. No. 06-15612 (Nov. 30, 2007).

Professional Pointer: This case should be a reminder of the important role the employer plays in the opt-in process. It is imperative that the FLSA collective action defendant carefully examine the language of the consent form to verify that only the lawsuit at issue is being authorized and not FLSA suits generally. FLSA collective actions are fast becoming the new bane of existence for employers. Cases like Albritton offer some modest degree of comfort.

Lawrence Peikes and Meghan D. Burns are attorneys with the firm of Wiggin and Dana LLP.

Related Article:
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Editor’s Note: This article should not be construed as legal advice.

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