“Hey, Judge, You Don’t Understand……I Just Wanted The Money!”
About two dozen people who opted into an FLSA collective action in Nevada federal court may soon be reminded that the pinch is usually in the fine print. Magistrate Judge Peggy A. Leen recommended sanctions against these individuals after they refused to respond to discovery. In fact, these lovable rapscallions apparently enjoy life on the wild side, as they even ignored the magistrate judge’s order granting the employer’s motion to compel.
To make it more interesting, let’s engage in some pure, rampant speculation, which is always much more fun than sticking with the facts. Upon receiving their opt-in notices, these individuals doubtlessly were reminded of the free tire rotation they received on their ’79 Camaro as part of some opt-out class action against a tire company. Or, maybe they fondly recalled the 25-cent coupon sent to them as part of an opt-out class settlement against a record company, which they used when they bought that fantastic Tom Jones’ Greatest Hits collection (The Deluxe Ladies’ Underwear Boxed Set Edition). They received those wonderful benefits simply by not sending in their opt-out notice. Sure, this new notice required them to actually put a stamp on something (an increasingly expensive endeavor), but it also came with the promise of cold, hard cash! After all, what’s the down side?
Well, the down side is that they became opt-in FLSA plaintiffs, not members of an opt-out class. And, defense counsel presumably insisted on including a provision in the notice advising them that they would have discovery obligations. While it appears that the sanction ultimately will be dismissal of their claims with prejudice rather than a lightening of their wallets (which they likely would find to be considerably more prejudicial), it’s encouraging to see a judge hold opt-in plaintiffs accountable. Perhaps more important from the perspective of a God-fearin’ management attorney, it’s precedent that can be cited to a judge leery of mentioning opt-in discovery obligations in a collective action notice.
The bottom line: Opt-in plaintiffs in FLSA collective actions have important discovery obligations and cannot simply sit back in the hopes of collecting a check, and defense counsel may legitimately insist that any notice distributed to putative opt-ins apprise them of these obligations.