Years ago, employers argued unsuccessfully that plaintiffs should not be able to pursue so-called hybrid claims pursuing both Rule 23 opt-out classes and Fair Labor Standards Act (FLSA) opt-in collective claims at the same time. They noted that combining the two would create procedural anomalies and that doing so would make case resolution unwieldy. They lost that argument, but a recent case demonstrates that they were probably right.
In In re Citizens Bank, Case No. 19-3046 (3d Cir. Oct. 5, 2021), the plaintiffs brought suit based upon the theory that the defendant had an unofficial policy of requiring off-the-clock work for approximately 1,000 mortgage loan officers. They brought FLSA collective claims and Rule 23 state law claims under the law of Pennsylvania. Following notice, 350 individuals opted in to the FLSA collective (interestingly, this was roughly twice the percentage one would ordinarily see in these types of cases). The plaintiffs then brought additional Rule 23 state law claims, ultimately involving the laws of 10 different states.