There has, of late, been a lot of controversy over whether workers who live outside a State where a FLSA class action is being litigated can opt-in to that action. Different Circuits have ruled differently on this crucial issue and now the First Circuit has joined the controversy. In a split decision, the First Circuit ruled that these workers are able to join the case. This may well mean the Supreme Court will have to decide the matter. The case is entitled Waters v. Day & Zimmermann NPS Inc. and issued from the Court of Appeals for the First Circuit.

The Court rejected the employer’s contention that it lacked jurisdiction over “foreign” employees who sought to join. The Court opined that “interpreting the FLSA to bar collective actions by out-of-state employees would frustrate a collective action’s two key purposes: 1. enforcement (by preventing violations and letting employees pool resources when seeking relief); and 2. efficiency (by resolving common issues in a single action).”

In a strongly worded and lengthy (fifteen pages) dissent, Judge Barron disagreed with the majority’s decision to decide an interlocutory appeal, asserting that the disagreement in the Circuits split will have “seemingly wide-ranging effects on a slew of cases that have nothing to do with the specific dispute at hand.”

This is an overtime case and, thus far, more than one-hundred employees have joined. Some reside outside of Massachusetts. In 2019, the Company sought to dismiss for lack of jurisdiction, relying on the Supreme Court holding in Bristol-Myers Squibb v. Superior Court of California. In Bristol-Myers, the Court would not allow people who lived outside of California to join the lawsuit because they did not have a sufficient connection to that jurisdiction. The trial court in Massachusetts rejected that argument and the Company appealed.

The First Circuit affirmed. The Court observed that opt-in plaintiffs joined a lawsuit when they signed the consent, whether or not a trial judge grants conditional certification. The Court noted that was separate and apart from a class action, which does require certification. The Court also made the distinction that the Bristol-Myers holding applied to out-of-state individuals who were litigating their claims in State court, in a State they do not live in, as opposed to these federal claims being litigated in a federal court. There is now a split in the Circuits on this crucial issue.

The Takeaway

The dissent took the position that the majority decision was at odds with other Circuits and noted that legal analysts have called for a revision of the federal Rules of Civil Procedure to address this issue. That Judge urged the majority to wait to see how the litigation developed before making such a major decision at such an early stage of the case. In any event, the matter is now ripe for resolution by the US Supreme Court and management side and plaintiff side lawyers will be eagerly waiting to see what that Court ultimately does. If the Court sides with the majority of the Circuits, employer advocates will be very happy.

Very happy…