Party On! The 11th Circuit Holds Filing A Written Consent Is Enough For Opt-In Plaintiffs To Achieve Party Status

Seyfarth Synopsis: In a first impression case, the Eleventh Circuit held that an "opt-in" plaintiff is only required to file a written consent to become a party-plaintiff in a collective action under the FLSA, and that the lack of conditional certification does not affect that status.

At or within a few weeks of the filing of a purported FLSA collective action, a plaintiff's lawyer often files pleadings signed by other current or former employees in which they consent to join the case as "opt-in" plaintiffs. Usually — but not always — a motion for conditional certification follows, with the opt-in plaintiffs providing supporting affidavits for that motion.

But what happens to those opt-ins if the case is never conditionally certified? No appellate court had ever addressed this question until the Eleventh Circuit did so last week in Mickles et al. v. Country Club Inc.

There, Mickles worked as an exotic entertainer at the Goldrush Showbar and alleged that she and those allegedly similarly-situated were misclassified as independent contractors and consequently deprived of minimum and overtime wages. After filing her complaint, three "opt-in" plaintiffs filed written consents to join the litigation. The case continued on through discovery. After discovery, Mickles moved for conditional certification, but the district court determined the motion was "nearly eight months" too late.

In his holding, Judge Jones reasoned that the Northern District of Georgia's Local Rules require motions for conditional certification be filed within 30 days of the commencement of discovery unless court permission is secured, which did not occur here.

Following the denial of conditional certification, the company filed a motion for clarification, inquiring as to whether the opt-in plaintiffs remained parties in the action. In response, Judge Jones ordered that the opt-in plaintiffs "were never adjudicated to be similarly situated to Mickles, and, therefore, were never properly added as party plaintiffs to the collective action." (Mickles and the company then reached a settlement in which the three opt-in plaintiffs did not participate.)

The three opt-in plaintiffs appealed to the Eleventh Circuit, which reversed, holding that "those who opt in become party plaintiffs upon the filing of a consent and that nothing further, including conditional certification, is required." The Eleventh Circuit remanded the case to the district court to either (a) dismiss the opt-in...