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23 Geo. J. on Poverty L. & Pol'y 233 (2015-2016)
Class Actions under Rule 23 and Collective Actions under the Fair Labor Standards Act: Preventing the Conflation of Two Distinct Tools to Enforce the Wage Laws

handle is hein.journals/geojpovlp23 and id is 241 raw text is: 

                  Georgetown Journal on Poverty Law and Policy
                     Volume XXIII, Number 2, Winter 2016

 Class Actions Under Rule 23 and Collective Actions
   Under the Fair Labor Standards Act: Preventing
          the Conflation of Two Distinct Tools to
                     Enforce the Wage Laws

              William C. Jhaveri-Weeks & Austin Webbert*


    Wage and hour litigation has played an increasingly important role in
enforcing state and federal wage protections for low-income workers. As the law
has developed, employees have brought two primary tools to bear in federal
courts: class actions under Federal Rule of Civil Procedure 23 asserting
violations of state wage laws, and collective actions under Section 216(b) of the
Fair Labor Standards Act (FLSA) alleging violations of that Act. These two
collective litigation procedures share a long and intertwined history, both
emerging in 1938, and both undergoing major changes at various points in their
nearly eighty years of existence. Courts attempting to understand the relationship
between the two would do well to understand their history, as certain
pronouncements about their relationship that were true when made are no longer
true today.
    The   modem    relationship between   the  two  procedures dates from
approximately 1995 to the present-the era of the so-called two step
certification process for FLSA collective actions. It has become common for the
two procedures to be used in a single lawsuit-a hybrid Rule 23 and FLSA
action. Such suits have given rise to increasing discussion by judges of how the
required showings for certification of a class or collective action differ in the
two procedures. A split has emerged in which one court of appeals recently
concluded that the two certification standards are the same, while another
concluded that the showing required to proceed collectively under the FLSA is
significantly lower than that required to proceed on a class basis under Rule 23.
    In what situation might it matter whether the required showings are the same
or different? Consider the following example. A janitor sues her employer
claiming that there is a company-wide policy of pressuring janitors to work off-

    * William C. Jhaveri-Weeks is a partner at Goldstein, Borgen, Dardarian & Ho, in Oakland,
California, where he primarily represents employees in employment-related class and collective actions.
Austin Webbert was a summer associate at Goldstein, Borgen, Dardarian & Ho and is a second-year law
student at the University of Michigan Law School. The authors would like to thank Edward Cooper,
Laura Ho, Catherine Ruckelshaus, and Julie Wilensky for their helpful comments on drafts of this article.
© 2016, William C. Jhaveri-Weeks & Austin Webbert.

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