The Sixth Circuit in Frye v. Baptist Memorial Hosp., Inc.¸ Case No. 11-5648 (CA 6 2012), recently upheld the requirement that even the named plaintiff must file the necessary written consent within the FLSA’s statute of limitations.
In November 2007, James Allen Frye filed a lawsuit against Baptist Memorial Hospital alleging that hourly employees were being underpaid by the hospital in violation of the Fair Labor Standards Act (“FLSA”). After conditional certification was granted, the federal district court set a deadline for interested employees, both current and former, to file written consents to participate in the lawsuit by January 2009. Subsequently, in September 2010, the trial court decertified the class action based upon the finding that there was no common FLSA injury. The Sixth Circuit Court of Appeals upheld the decertification of the collective action.
After the decertification was granted, the employer moved for summary judgment on the ground that Frye failed to timely file the required written consent required by the FLSA. In support of this motion, the employer relied on Section 256 which provides:
[I]n the case of a collective or class action instituted under the [FLSA], it shall be considered to be commenced in the case of any individual claimant—
(a) on the date when the complaint is filed, if he is specifically named as a party plaintiff in the complaint and his written consent to become a party plaintiff is filed on such date in the court in which the action is brought; or
(b) if such written consent was not so filed or if his name did not so appear — on the subsequent date on which such written consent is filed in the court in which the action was commenced.
29 USC § 256.
Frye argued that that the statute does not require the filing of a written consent by the named plaintiff. Id. at 13. The Sixth Circuit disagreed. The court held that the plain language of the statute requires “a named plaintiff in a collective action to file a written consent to join the collective action.” Id.
Alternatively, Frye argued that the decertification of the lawsuit effective converted it to an individual action that should not be subject to the requirements of Section 256. Id. at 14. Again, the Sixth Circuit disagreed. The appellate court held that “Frye’s Complaint unambiguously signaled his intent to pursue a collective action under the FLSA; he needed to comply with the FLSA’s written-consent requirement within the statute of limitations.” Id. at 15.
Additionally, Frye claimed that the FLSA does not identify the form of a document that may satisfy the act’s requirement for written consent, and that his actions, including hiring a lawyer, filing a complaint as a class representative, and providing deposition testimony, should be enough to demonstrate consent. Id. at 15. However, the appellate court rejected this argument too. The Sixth Court held “even allowing latitude of form, the requirement remains a filed written consent.” [Emphasis supplied] Id. at 15.
Finally, Frye argued that the employer should be equitably estopped from asserting a statute of limitations defense because it did not object to the written consents filed by the opt-in plaintiffs and it did not oppose Frye’s attempt to serve as a class representative. Id. at 16. The court summarily rejected this argument by finding that Frye failed to present any authority for such a position. Id.
Concluding that Frye failed to comply with the FLSA mandate to file a written consent within either of the limitations period provided by the act, the Sixth Circuit Court of Appeals affirmed summary judgment for the employer. Id. at 16-17.
This case provides a further tool for employers to use in defeating collective actions. As with most tools, though, it is advisable to use it carefully.
Rebecca S. Davies and Robert A. Boonin, Butzel Long