NELA Amicus Brief Urges Supreme Court To Prevent Defendants From Short-Circuiting Collective Actions

By Matthew C. Koski posted 11-08-2012 02:03 PM

On October 26th, NELA, joined by AARP, The National Employment Law Project, The Legal Aid Society, the California Rural Legal Assistance Foundation, the DC Employment Justice Center, filed an amicus brief in support of the Respondent, Laura Symczyk, in Genesis Healthcare Corp. v. Symczyk, currently pending in the United States Supreme Court. Our brief was drafted by Richard J. (Rex) Burch (Houston, TX), with assistance from J. Derek Braziel (Dallas, TX) and Douglas M. Werman (Chicago, IL).

In 2009 Laura Symczyk, a Registered Nurse, sued her employer to challenge a company policy that automatically reduced the employees’ pay to account for meal breaks, even when the employees performed compensable work during those breaks. She sought relief under the Fair Labor Standards Act (FLSA) on behalf of herself and all others similarly situated. The District Court for the Eastern District of Pennsylvania dismissed Symczyk's complaint for lack of subject matter jurisdiction after the defendants extended an offer of judgment under Federal Rule of Civil Procedure (Rule) 68, in full satisfaction of her alleged damages, fees, and costs. Ms. Symczyk did not respond to the offer.

The Third Circuit reversed the District Court's decision, and, analogizing to the context of class certification under Rule 23, held that “[a]bsent undue delay in filing a motion for class certification . . . where a defendant makes a Rule 68 offer to an individual claim that has the effect of mooting possible class relief asserted in the complaint, the appropriate course is to relate the certification motion back to the filing of the class complaint.” The Third Circuit concluded that the “relation back” doctrine “has evolved to account for calculated attempts by some defendants to short-circuit the class action process and to prevent a putative representative from reaching the certification stage.”

The Third Circuit also recognized that while the defendant's attempt to distinguish opt-in collective actions from opt-out class actions had “some surface appeal, reliance on the watershed event of an opt-in to trigger application of the special mootness rules that prevail in the representative action context incentivizes the undesirable strategic use of Rule 68 that prompted” the Third Circuit to adopt the rule in the class action context.

Our brief discusses the importance of collective actions in remedying violations of our wage and hour laws. The brief points out that wage theft continues to be a serious problem for many American workers, particularly those employed in relatively low-wage positions. In order to make their claims financially viable and to avoid retaliation, low-wage workers must be allowed to band together and collectively challenge unlawful wage policies and practices. Allowing employers to “pick off” individual plaintiffs before other aggrieved workers are allowed to join a case would permit a wide range of unlawful behavior to proceed unchecked. Moreover, an adverse ruling in this case could affect the other statutes that use the FLSA’s collective action procedures, such as the Age Discrimination in Employment Act and the Equal Pay Act.

A copy of NELA’s brief can be downloaded from the NELA Exchange.