Collective Action vs. Class Action in FLSA

Collective actions share some characteristics with class actions, but are not the same. In FLSA cases, an employee must opt in, meaning that they must affirmatively sign a document stating that they wish to be a part of the lawsuit. In class actions, under Rule 23(b) of the Federal Rules of Civil Procedure, employees are presumed to be a part of the class and any employee who doesn't want to participate in the lawsuit must opt out. Class actions cannot be used to assert wage and hour claims brought under the FLSA but employees may bring an "opt in" or "collective action" under FLSA Section 216(b). One or more employees may maintain an action, on behalf of themselves and other employees who are similarly situated, to recover damages on any of the grounds available for individual FLSA relief. Employees who do not file a written consent are not bound by the outcome of the collective action and may file a subsequent private action. The FLSA collective action may be brought in either state or federal court.