Corporate America’s quest to convince federal judges that class action claims alleging violations of state wage laws cannot be pursued alongside FLSA collective actions continues to conflict with the reality that federal courts across the country often certify in the same action both “opt-in” collective actions asserting FLSA violations and Rule 23 “opt-out” class actions asserting violations of state wage laws. In the latest example, Chief Judge Joseph Bataillon, in Lopez v. Tyson Foods, Inc., 2008 U.S. Dist. LEXIS 60050 (D. Neb. Aug. 7, 2008), both conditionally certified the worker’s FLSA as an opt-in collective action under 29 U.S.C. 216(b) and certified their Nebraska Wage Payment and Collection Act claim as an opt-out class action under Federal Rule of Civil Procedure 23.
