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Join Your Co-Workers to Fight Back Against Wage Theft Together: Collective Actions Under the Fair Labor Standards Act

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The Fair Labor Standards Act (“FLSA”) covers more than 143 million American workers and requires employers to pay these workers a minimum hourly wage, as well as pay time and a half for all hours over 40 in a given work week. Unfortunately, violations of the FLSA are frequent. According to 2017 report from the Economic Policy Institute, about 15 billion dollars are stolen annually from workers nationwide through minimum wage violations.[1] This amount is more than the value of all property crimes committed in the United States.[2]

These violations go on while minimum wage workers face numerous barriers to enforcing their rights. Two of the main reasons are (1) workers are unaware that their rights have been violated, and (2) even if workers are aware of a violation, they fear their employer will retaliate against them (which itself is illegal under the FLSA).[3] Minimum Wage workers do not have to stand alone to enforce their workplace rights. The Fair Labor Standards Act (“FLSA”) empowers workers to band together in a what is known as a Collective Action lawsuit to recover unpaid wages that result from their employers’ illegal policies.

What is a Collective Action?

The Collective Action addresses the two major barriers to enforcing wage rights because it simultaneously lets workers know that their rights may have been violated where they otherwise were unaware, and lets workers join together in a lawsuit, giving them strength in numbers to deter illegal employer retaliation against those who stand up for their rights in the workplace.

When a worker files a Collective Action lawsuit claiming their employer’s payment policies violated the FLSA, a Federal Judge can order that all co-workers who were affected by the illegal policy get a notification about the case. The notice can take various forms, including a letter, an email, a text message, or even posting the notice at the place of business. The notification provides the details of the case, what claims or violations are being alleged in the lawsuit, how to get more information or ask questions, and, most importantly, includes an opt-in form to join the lawsuit.

What Happens When I Opt-In to a Collective Action?

The person that filed the lawsuit is known as the Named Plaintiff. When you sign the form to join the lawsuit, you become an opt-in plaintiff. The Named Plaintiff conducts the lawsuit on behalf of the opt-in plaintiffs. The lawyer for the named plaintiff becomes the opt-in plaintiff’s lawyer as well, representing the Collective Action as a whole.

Usually, opt-in plaintiffs are not required to do much during the lawsuit. Occasionally, opt-ins may be asked to answer questions and provide documents that they have. Rarely, they are asked to answer questions in a deposition. Regardless, the lawyer for the Collective Action guides opt-in plaintiffs each step of the way, and the Collective Action proceeds together.

Do I have to Pay to Opt-in?

One of the major advantages to the FLSA Collective Action is that it allows workers who opt-in to share resources, meaning one lawyer or law firm can represent the workers as a group, minimizing legal costs to the Collective Action. At Biller & Kimble, we take FLSA Collective Action cases on what is called a “contingency fee” which means we pay for the costs of conducting lawsuit upfront, and we do not charge fees or collect costs unless the workers win. This system allows workers to get excellent representation even when they could not otherwise afford an experienced lawyer to handle their case.

[1] Cooper, David, and Teresa Kroeger. 2017. Employers Steal Billions from Workers’ Paychecks Each Year. Economic Policy Institute, May 2017, p. 28.

[2] Id. (Based on the FBI’s estimates for 2015 of $12.7 billion).

[3] See Charlotte S. Alexander & Arthi Prasad, Bottom‐Up Workplace Law Enforcement: An Empirical Analysis, 89 IND. L.J. 1069, 1071(2014)


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ADVERTISING ONLY: The information on this blog is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation.

Past results obtained by Biller & Kimble, LLC are no guarantee of future results. Each case or matter is different and must be judged on its own merits.