Down With Frivolous Lawsuits! (and By "Frivolous" I Mean Those Other Guys' Lawsuits)
Are Meal and Rest Period Payments Part of One's Pay Rate for OT Purposes?

The FLSA and Supplemental Jurisdiction

The Class Action Fairness Act has undoubtedly resulted in a larger number of wage and hour class actions being sent to U.S. District Court. So many, in fact, that some lawyers have started filing their class actions in District Court to begin with, denying the defense the opportunity to choose a (perceived) better forum for the employer, particularly if they believe that there could be a nationwide FLSA claim included in the complaint. Some now do so whether or not their class action meets the subject matter jurisdictional requirements under CAFA, assuming that, once it has jurisdiction over the case as a federal (FLSA) question, the District Court will exercise supplemental jurisdiction over all related wage and hour claims arising under state law. That assumption isn't always correct.

In one recent case filed in U.S. District Court in Connecticut, a group of employees alleged that their employer failed to pay overtime required under both the FLSA and Connecticut law. Neary v. Metropolitan Prop. & Cas. Ins. Co. (D. Conn. 2007) 472 F.Supp.2d 247, 248. Their fourth and fifth causes of action sought sought remedies for alleged violations of state wage and hour laws "in each state in which each plaintiff worked." The defendant filed a motion to dismiss, arguing that the court needn't and shouldn't exercise its discretion to here both an opt-in FLSA collective action and an opt-out class action based upon state law. The District Court agreed, finding that an irreconcilable conflict existed between the state law class procedures and the FLSA collective action procedures, such that it would be better for the court and the litigants if the court declined to exercise supplemental jurisdiction over the state wage and hour class action.

The rationale expressed by the court in Neary won't apply to every mixed FLSA and state law case. It certainly would not apply if the court already had jurisdiction over state law claims under CAFA, and its persuasive value might not be as powerful in cases involving just one state's wage and hour laws, because the court based its ruling in part on the unusual circumstances presented where “the proposed class ... involves not just one state's wage and hour statute in addition to FLSA claims, but potentially involves claimed violations of fifty states' wage and hour statutes, each with potential novelties ... and complexities."

There have been numerous cases, before and since, in which the trial court invoked supplemental jurisdiction over state law (opt-in) wage and hour class actions filed along with FLSA claims (e.g., Cryer v. Intersolutions (D. D.C.) Case No. 06-2032, April 20, 2007), but the possibility that a motion to dismiss will be granted must be considered when the class action plaintiff is deciding which forum to choose.


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