Collective Confusion: FLSA Collective Actions, Rule 23 Class Actions, and the Rules Enabling Act
affiliation not provided to SSRN
September 16, 2009
Hastings Law Journal, Vol. 61, No. 101, pp. 101-132, November 2009
This Note explores the procedural contours of hybrid actions: Combined state law opt-out 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 of 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 FLSA section 216(b). In short, FLSA section 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.
Number of Pages in PDF File: 36
Keywords: Hybrid Actions, Class Actions, Collective Actions, FLSA, Rule 23
JEL Classification: J00, K40, K41, K49, K00Accepted Paper Series
Date posted: September 18, 2009 ; Last revised: December 9, 2009
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