Ninth Circuit Court of Appeals Holds With Adequate Notice a State Employment Claim May Proceed Simultaneously with a FLSA Claim – Los Angeles Wage & Hour Claims Attorneys Blumenthal, Nordrehaug & Bhowmik

by Norman B. Blumenthal on May 30, 2013

JusticeThe Ninth Circuit Court of Appeals has followed several other Circuits in holding that the opt-in requirement of a collective action under the Fair Labor Standards Act (FLSA) does not mandate dismissal of a state law opt-out class action.  Busk v. Integrity Staffing Solutions, Inc.

Plaintiffs Busk and Castro were hourly employees of Integrity Staffing Solutions, Inc., which provided warehouse space and staffing to such clients as  The plaintiffs sued Integrity when they were not paid for “off the clock work” which included a requirement to 1) pass through a security clearance for up to 25 minutes at the end of each shift and 2) spend up to 10 minutes of their lunch period “walking to and from the cafeteria and/or undergoing security clearances.”

The district court granted Integrity's motion to dismiss the amended complaint holding that the time spent clearing security was not compensable under FLSA, while the plaintiffs' allegations about shortened meal periods did not state a claim under FLSA.  The district court also dismissed the state law claims because of “conflicting” class certification mechanisms, namely that while plaintiffs must opt into a collective action under FLSA, plaintiffs must opt out of a class action under Federal Rule of Civil Procedure 23.

The Ninth Circuit Court of Appeals reversed the district court holding noting that there was nothing in the FLSA’s text or legislative history that required that a hybrid state opt-out claim must be dismissed or that permitting such a hybrid state class action would thwart Congressional intent.  Further, allowing the classes to proceed simultaneously would not cause “unnecessary confusion” for potential class members since the district court has the ability to work out an adequate notice in this type of case.  Furthermore, “if these actions were to proceed separately—the FLSA in federal court and the state-law class action in state court—an entirely different and potentially worse problem of confusion would arise, with uncoordinated notices from separate courts peppering the employees.

Blumenthal, Nordrehaug & Bhowmik is an experienced California employment law firm with offices located in San Diego, San Francisco and Los Angeles. The firm dedicates its practice to contingency fee employment law work for issues involving misclassification as a salaried worker exempt from overtime, failure to pay vacation wages, misclassification as an independent contractor, off-the-clock work, wrongful termination, discrimination and other California labor laws.

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