6th Circuit Holds Named Plaintiff’s Failure to File Timely Written Consent Bars FLSA Claims

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The Sixth Circuit Court of Appeals recently issued a decision in Frye v. Baptist Memorial Hospital, Inc., which includes a discussion of some of the basics of Fair Labor Standards Act (FLSA) collective actions as well as a procedural pitfall for the unwary. The plaintiff in Frye brought a putative collective action against his employer, a hospital, challenging its practice of automatically deducting meal breaks from employees’ pay. The district court certified a conditional class but, after discovery, it decertified the collective action and dismissed the named plaintiff’s wage claim as time barred.

It is relatively well settled that an automatic deduction policy is not a per se violation of the FLSA.  To ensure employees are actually paid for all hours worked, however, employers must provide and educate employees regarding a means (i.e. exception procedures) by which they can “override” the automatic deduction when they perform work during their meal break.  Frye’s employer had such procedures in place; however, they apparently varied somewhat from department to department and were not known to all. In arguing for class certification, Frye cited the testimony of various putative class members, which he claimed showed that employees had not been properly educated on their entitlement to compensation for work performed while on break or trained on how to report that work. This testimony showed that at least one opt-in plaintiff claimed his department had no exception procedures, another was allegedly discouraged from reporting worked performed on break, and others avoided reporting for convenience or because they forgot. While this testimony suggested some individual FLSA violations, the variations in employee testimony ironically undermined Frye’s quest to establish a common injury sufficient to warrant class treatment. It was apparently undisputed, moreover, that the vast majority of putative opt-in plaintiffs knew of the employer’s exception procedures, were not discouraged from using them, and were paid for all time they reported to have worked.

The Court noted that Frye might have been able to successfully obtain certification of a smaller subset of employees, but had declined to do so. In the end, the Court said, the only common injury experienced was the automatic deduction policy itself, which comports with the FLSA and therefore cannot serve as the “lone point of similarity supporting class certification.” The Court affirmed the district court’s decision to decertify the class.

The next issue the Court tackled—whether a named plaintiff must file “written consent” to join the collective action—is noteworthy because there are few decisions discussing the question. The statute of limitations on an FLSA claim is two years, or three years if the claim consists of a “willful violation.” 29 U.S.C. § 255(a). To bring a collective action, the plaintiff must file a written consent to opt-in. 29 U.S.C. § 216(b). For limitations purposes, an FLSA collective action is “commenced” by filing a complaint along with a written consent or, if the written consent is not filed with the complaint, on the date that the written consent is actually filed. 29 U.S.C. § 256. Frye, who never filed his own written consent, argued that the FLSA does not require named plaintiffs to do so. The Sixth Circuit disagreed, citing the language of the statute, which plainly states that an FLSA collective action is “commenced” with the filing of a written consent.

Frye responded by arguing that the district court’s decertification order was effectively an amended pleading, which operated to convert his action from a collective action to an individual claim. The Sixth Circuit rejected this argument too, citing Frye’s complaint, which clearly indicated his intent to pursue a collective action. After rejecting a few other arguments raised by Frye as to why his claims were timely (e.g. that his appearance at deposition or hiring of counsel to file a collective action on his behalf constituted “written consent,” equitable estoppel, etc.), the Court concluded that Frye’s FLSA claim was time-barred and affirmed the district court’s grant of summary judgment for the employer.

The FLSA clearly ties the commencement of an FLSA collective action to the filing of a written consent. However, there is little case law discussing this requirement, either because plaintiffs initiating collective actions have been careful to file written consents, or because defendants have not thought to check.  Employers and their counsel should remember to check whether plaintiffs have complied with this routine procedural requirement when faced with FLSA complaints.