On July 16, in Smith v. Professional Transportation Inc.,[1] the Seventh Circuit answered what might at first seem like an unnecessary question:  how does a plaintiff “commence” an FLSA lawsuit?  Under most circumstances, of course, a named plaintiff need only file a Complaint, and the lawsuit is off and running.  But unlike Rule 23 class actions, the FLSA requires putative collective action members to affirmatively opt into a collective action by giving their consent in writing.  Specifically, the statute says that “[n]o employee shall be a party plaintiff to any such [collective] action unless he gives his consent in writing to become such a party” and the consent is filed with the court.  29 U.S.C. § 216(b).  In other words, each employee’s lawsuit is “commenced,” and the statute of limitations stops running for that individual, on the date he or she files a signed consent.

Unlike the other employees she sought to represent, plaintiff Peggy Jo Smith did not file such a signed consent—she only filed her Complaint.  That Complaint contained factual allegations specific to Smith, and confirmed that she sought to proceed both individually and on behalf of those similarly situated.  After discovery, however, defendant PTI pointed out that Smith had not filed anything besides her complaint to indicate that she wanted to participate in the lawsuit on her own behalf.  The United States District Court for the Southern District of Indiana found this flaw fatal, and dismissed the case.  The court based its decision on Judge Posner’s prior ruling in Harkins v. Riverboat Servs., Inc., which held that even plaintiffs named in the complaint had to file separate signed consents in an FLSA collective action.[2]

Even so, the Smith panel reversed, and found that Smith’s individual claims could proceed.  It held that § 216(b) permits “dual capacity” suits, in which “a plaintiff sues simultaneously as a group representative and as an individual.”  In an individual  FLSA action (even one with multiple named plaintiffs), no consent requirement exists.  So, to the extent Smith was pursuing her claims individually, the Court reasoned, she did not need to file a written consent.  The Court then asked whether Smith had done enough, either in her pleadings or through discovery, to put PTI on notice that she was pursuing her claims in an individual capacity.  The answer, unsurprisingly, was yes—Smith’s Complaint included both individual and collective allegations, and she had confirmed as much in her deposition testimony.  The Court therefore held that the trial court had erred in dismissing Smith’s individual claims.

What remains unresolved, though, is whether a named plaintiff must file a separate consent to pursue her collective claims, or whether her complaint can be enough.  The Seventh Circuit avoided deciding what would happen to Smith’s collective action claims because she had not squarely briefed the question.  Other appellate courts are currently split:  the Eighth Circuit,[3] on the one hand, has held that a named plaintiff must file a separate consent to pursue an FLSA collective action or face dismissal of the entire case; the Eleventh, Fifth, and Fourth Circuits[4] have said (or at least implied) the opposite.  To date, few cases have directly addressed these questions, but in light of the Seventh Circuit’s narrow holding, we anticipate that these issues will receive more attention in the near future.

[1] — F.4th –, 2021 WL 3012335 (7th Cir. July 16, 2021).

[2] 385 F.3d 1099 (7th Cir. 2004).

[3] Gomez v. Tyson Foods, Inc., 799 F.3d 1192, 1194 (8th Cir. 2015).

[4] Mickles v. Country Club Inc., 887 F.3d 1270, 1276 (11th Cir. 2018); Simmons v. United Mortg. & Loan Inv., LLC, 634 F.3d 754, 758 (4th Cir. 2011); Sandoz v. Cingular Wireless LLC, 553 F.3d 913, 916-17 (5th Cir. 2008).