Connecting the dots will likely be a problem down the road . . .
The overwhelming majority of employment class or collective actions today are wage and hour matters. The two-step paradigm for certifying wage and hour claims under the Fair Labor Standards Act has, despite Congressional intent to the contrary, enabled much of that boom in overtime litigation.
The Age Discrimination in Employment Act expressly incorporates much of the FLSA’s enforcement procedure, including the section 16(b) requirement that similarly situated claimants actually opt in. Indeed, one of the most commonly cited early decisions supporting the procedure, the Lusardi opinion (118 F.R.D. 463 (D.N.J. 1987)), was actually in an ADEA case. Incidentally, the same procedure applies under the Equal Pay Act, although such claims are far less common than those for overtime. But while the ADEA uses FLSA procedures, collective actions under that statute are still much less common than those under the FLSA. Continue Reading