Notice Requirements for FLSA Section 216(b) Collective Actions

Summary

This practice note discusses the required notices after a court has conditionally certified a collective action pursuant to § 216(b) of the Fair Labor Standards Act (FLSA) (29 U.S.C. § 216(b)) (§ 216(b)). At this point in the collective action litigation, the parties must notify potential members of the collective action to provide them with the opportunity to "opt in" to the lawsuit. (This is unlike Rule 23 class actions where members of a certified class are part of the class action unless they "opt out" of the lawsuit.) The FLSA does not expressly require court supervision of the notice process, but the Supreme Court has interpreted § 216(b) as authorizing courts to facilitate and supervise the sending of notice to potential members of the collective action. Hoffmann-La Roche v. Sperling, 493 U.S. 165, 169–70 (1989).