Lessons for Employers in FLSA Collective Action Strategy from the Service Industry


One of the most common types of litigation facing employers is the Fair Labor Standards Act (“FLSA”) collective action. These lawsuits are generally a lose-lose situation for employers because they must wage a defense through the lengthy class certification process while attorneys’ fees for both sides stack up. Even if the employer’s pay practices are fully compliant with the FLSA, courts generally do not consider the merits of the case until well into the litigation. Read more about this in our article for the MSBA Bar Bulletin here where we discuss the following:

  • The two-stage certification process under the FLSA’s collective action provision and the different burdens on the plaintiff(s) at each stage;
  • A recent case from the U.S. District Court for the Northern District of New York involving restaurant employees who premised their minimum wage allegations on their employer’s tip pooling practices; and  
  • Lessons learned from a defendant employer in attempting to resolve an FLSA collective action before class certification.


This blog was written by Nicole Whitecar at Miles & Stockbridge.

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