Fair Labor Standards Act – Individual Claims – Time-barred

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7^th Circuit Court of Appeals

Case Name: Peggy Jo Smith, et al., v. Professional Transportation, Inc., et al.,

Case No.: 20-2046

Officials: WOOD, BRENNAN, and ST. EVE, Circuit Judges.

Focus: Fair Labor Standards Act – Individual Claims – Time-barred

Between November 2011 and August 2013, Peggy Jo Smith worked for Professional Transportation Inc. (PTI), a company that transports railroad crews to and from their places of work. Believing that her position was misclassified for purposes of the Fair Labor Standards Act (“the Act”) and that she was not receiving proper overtime wages, she filed this action “individually and on behalf of similarly situated individuals” on December 26, 2013. The Act permits both individual actions and collective proceedings. See 29 U.S.C. § 216(b). Unlike the better-known class action under Federal Rule of Civil Procedure 23(b)(3), however, which includes everyone in the class who does not opt out, the FLSA collective action requires group members affirmatively to opt into the collective action in order to participate.

At first, it seemed that Smith’s effort to serve as a named representative of a collective action under the Act was proceeding well. Her initial filing was well within the two years that the Act provides for the commencement of litigation. See 29 U.S.C. § 255(a). (Indeed, the Act has a three-year limitation period for allegations of willful conduct. Id.) The parties filed a joint case management plan on March 25, 2014, three months after the case was filed, and the district court promptly approved it. Docs. 15, 16. Part IV of that plan addressed “class certification matters.” And the district court’s docket sheet shows numerous putative group members consenting to opt into the litigation.

The case went off the rails, however, when PTI pointed out that Smith herself had not filed anything in addition to her complaint indicating that she herself wished to participate in the group action. Relying on our decision in Harkins v. Riverboat Services, Inc., 385 F.3d 1099 (7th Cir. 2004), the district court deemed this a fatal flaw for the collective action. It held that Smith’s group action could not “commence” until such a consent was filed. 29 U.S.C. § 256. Moreover, by the time the court reached this conclusion, both the two-year and the three-year statutes of limitations had run. The court then concluded that Smith’s complaint also failed to allege timely individual claims, and on that basis it dismissed the case in its entirety.

Aside from some stray references to the underlying putative collective action, Smith’s appeal contests only the district court’s refusal to allow her individual action to move ahead. We thus do not have before us the difficult question whether every member of a collective action, including the named plaintiff(s), must file a separate document entitled a Consent, or if it is enough for the named plaintiff(s) to indicate in the complaint that they affirmatively wish to proceed in that capacity. We conclude, however, that the court erred by refusing to allow Smith to proceed on her individual claims, and so we vacate that part of its judgment and remand for further proceedings.

Vacated in part. Remanded in part.

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Derek A Hawkins is Corporate Counsel, at Salesforce.