Section 16(b) of the Fair Labor Standards Act (FLSA) is the provision that requires those participating in a federal claim for minimum wages or overtime to opt in to the class, making Rule 23 inapplicable. The same enforcement applies to claims under the Equal Pay Act (EPA), 29 U.S.C. Section 206(d). The EPA is itself the result of a 1963 amendment to the FLSA, predating Title VII’s prohibition on sex discrimination by several months but relying on Section 16(b), not the Equal Employment Opportunity Commission, for enforcement.

In plain English, the use of the FLSA’s enforcement mechanism means that the opt-in requirement for collective actions under the FLSA applies to the EPA as well. And that includes the use of the now-familiar procedure of a lower standard for conditional certification followed by (if granted) a period of notice and opting in, followed by a motion for decertification under a higher standard. And as with the FLSA, while conditional certification motions may be easier to obtain, holding the collective action together following decertification is much harder, as a recent case demonstrates.

In Ahad v. Board of Trustees of Southern Illinois University, Case No. 15-cv-3308 (C.D. Ill., Mar. 29, 2019), the plaintiff, a physician working for Southern Illinois University and its physician practice group, brought suit under the EPA contending that women physicians were paid less than male physicians for the same or similar work. The district court, applying the lower first-stage standard, conditionally certified a class of female physicians, and three additional women opted in, for a total class of four. Following discovery, the defendant moved for decertification. Tellingly, however, the court also denied the plaintiff’s motion to certify the case under Rule 23 and Title VII due to a failure to demonstrate commonality and typicality.

The defendants also moved for decertification of the EPA collective class. For their part, the plaintiffs argued that there were only a handful of job titles (such as “assistant professor”). The plaintiffs also made arguments that physicians are largely interchangeable and that factors such as specialties or duties did not matter – arguments that probably undercut the plaintiffs’ own credibility. They also asserted that even though the compensation plan was gender neutral on its face, it gave too much discretion to the department heads and involved review by only two administrators, the university dean and the practice CEO.

The defendants in turn pointed to many factors distinguishing among physicians and even among the four opt-in plaintiffs. Each physician working for the university had a different mix of research, teaching and patient service duties. The compensation plan, in fact, accounted for these different sets of duties. Different physicians worked in different departments and under different department chairs. The individual physicians had their own individual contracts, and salaries were adjusted annually based on the compensation plan and their own performance. Most of those who opted in received substantial pay increases as they progressed, for example, from assistant to full professor or from professor to director or even vice chair. Similarly, pay was affected by specific programs, Medicare limits (in some areas), market forces, competition for patients in some specialties and efforts by other practice groups to recruit key employees.

The court rejected the plaintiffs’ arguments and largely agreed with the defendants. It also noted that the EPA permitted pay differentials based on factors other than sex. Thus, the evaluation of each claim would require analysis of each individual’s situation to determine what non-gender factors, if any, would explain a particular alleged discrepancy. The court found similar problems in determining damages, which would necessarily vary from individual to individual and between different comparables. It therefore decertified the collective action and dismissed all but the lead plaintiff’s claims without prejudice.

The Ahad case is interesting for several reasons. First, of course, it includes an unusual plaintiff population of physicians. It also involves EPA claims, which, although they have the same procedural requirements, are far less common than those under the FLSA. Furthermore, the case demonstrates a recurrent problem in FLSA litigation: an all-too-willing acceptance of collective allegations at the first stage. Few of the problems identified by the district court were concealed at the time of the conditional certification order. With application of a standard requiring a real showing that the plaintiffs were indeed “similarly situated,” as Section 16(b) required, or one that considered the practical difficulties that certification would create, the parties could have avoided more than a year of expensive and unproductive litigation.

The bottom line: EPA claims are governed by the same collective action procedures as FLSA minimum wage and overtime claims, with pretty much the same results.