Defendants opposing FLSA collective litigation often argue that collective litigation us unwarranted because (i) low employee participation rates demonstrate that all is well in the workplace and (ii) the case is just too big and complicated to proceed as a collective action. I recently reread a great opinion – Falcon v. Starbucks Corp., 580 F. Supp. 2d 528 (S.D. Tx. 2008) – in which Judge Keith Ellison cogently addressed each of these arguments. Here’s what the Judge had to say about low opt-in rates: “Nor is the Court persuaded by Defendants’ argument that the relatively small response to Plaintiff’s notice justifies decertification because it suggests that there is no general policy or plan. Individuals may have myriad reasons for not wishing to opt-in to a lawsuit against their employer ranging from fear of retaliation to sheer inertia, and the Court declines to draw any particular inference from the response size.” Id. at 538. And here is what he said about the “bigness” argument: “there is no indication that Congress intended section 216 to only allow small collective actions involving unpaid overtime to proceed.” Id. at 540; See also Donahue v. Francis Services, Inc., 2004 U.S. Dist. LEXIS 11525 (E.D. La. June 22, 2004) (“[a]dopting defendants’ reasoning would lead to the absurd result that employers could escape FLSA liability by making sure to underpay vast numbers (rather than smaller numbers) of their employees.”). Some helpful references from Texas for all us overtime rights lawyers!
