No Hypothetical Class Members needed
Answer: No. Over the years, many companies that have been sued in lawsuits under the Fair Labor Standards Act (FLSA) or state overtime and minimum wage laws have tried to make class certification by raising the standard. Many courts in Texas, Louisiana, and Mississippi require the plaintiff to show 2 elements before certifying the lawsuit as a class:
(1) there is a reasonable basis for crediting the assertion that aggrieved individuals exist;
(2) those aggrieved individuals are similarly situated to the plaintiff in relevant respects given the claims and defenses asserted.
Employers that have been sued for overtime or minimum wage violations often raise the bar by requiring that Plaintiffs must also demonstrate a third element-
(3) those individuals want to opt in to the lawsuit. See, e.g., Cantu v. Vitol, Inc., No. H-09-0576, 2009 WL 5195918, at *4 (S.D. Tex. Dec. 21, 2009) (unpublished); Tolentino, 716 F. Supp.2d at 653.
Essentially, employers argue that plaintiffs in collective action wage and hour lawsuits must demonstrate that other workers are interested in joining the lawsuit before the court should certify the case as a class. This third element is a theory that is not limited to employers sued in Texas but has been raised all over the country in wage and hour lawsuits filed far as South Carolina, Florida, and New York.
Other courts, however, have rejected the third, non-statutory element. See, e.g., Jones v. Cretic Energy Servs., LLC, 149 F. Supp.3d 761, 768 (S.D. Tex. 2015); Dreyer v. Baker Hughes Oilfield Operations, Inc., No. H-08-1212, 2008 WL5204149, *3 (S.D. Tex. Dec. 11, 2008) (unpublished); Heckler v. DK Funding, LLC, 502 F. Supp.2d 777, 780 (N.D. Ill. 2007). Employers tend to argue that the plaintiff in an overtime or minimum wage lawsuit must prove that his or her friends at work also want to join the lawsuit before the court can certify the lawsuit as a collective action.
The Fifth Circuit Court of Appeals put an end to the third element by holding that “plaintiffs seeking conditional certification need not identify other hypothetical collective action members” and citing Portillo v. Permanent Workers, L.L.C., 662 F. App’x 277, 280 (5th Cir. 2016). Workers who file lawsuits for unpaid overtime and minium wage in the Fifth Circuit (Texas, Louisiana, and Misisippi) no longer need to demonstrate that other workers are interested in jonining in order to obtain conditional certification.
Defense lawyers who work in this space and are current on the law are no longer arguing the third elements.
