This Note explores the procedural contours of hybrid actions: Combined state law optout Rule 23 class actions and Fair Labor Standards Act opt-in collective actions in one lawsuit. The Note contains four parts. Part I examines the history of the FLSA, the Portal-to-Portal Act of 1947, and Rule 23. Part II provides a brief procedural guide to the collective action and class action certification processes. Part III surveys published federal court cases and ultimately posits that hybrid actions violate the Rules Enabling Act. Finally, Part IV urges Congress to abolish collective actions by repealing § 2I6(b) of the FLSA. In short, § 216(b) was drafted during the infancy of group litigation and is an antiquated vestige. If Congress excises this vestige, federal courts could readily employ updated class action and supplemental jurisdiction rules to more efficiently adjudicate FLSA and state wage and hour claims in one action.
Daniel C. Lopez,
Collective Confusion: FLSA Collective Actions, Rule 23 Class Actions, and the Rules Enabling Act,
61 Hastings L.J. 275
Available at: https://repository.uchastings.edu/hastings_law_journal/vol61/iss1/6