On August 4, 2011, we reported on the case of Dionne v. Floormasters Enters, a case from the Eleventh Circuit Court of Appeals that effectively allowed an employer to avoid paying attorneys’ fees in an FLSA lawsuit and also allowed the dismissal of an FLSA lawsuit prior to class certification where an offer of judgment made by the employer made the plaintiff-employee “whole.” However, since then, several other circuits, namely the Third and Ninth Circuit Courts of Appeal, have published contrary decisions holding that an offer of judgment made by an employer to a plaintiff-employee in an FLSA case will not moot the case where the court has not yet ruled on class certification.
In Pitts v. Terrible Herbst, Inc. (Case No. 10-15965), the plaintiff-employee was owed less than $100.00 for unpaid wages. Despite the fact that the employer communicated an offer of judgment in the amount of $9,000.00 — almost ten times what the plaintiff could receive if he proceeded and prevailed at trial — the court would not dismiss the case because it had not yet ruled on class certification. As a result, the Ninth Circuit Court of Appeals decision makes it clear that employers who are being sued for unpaid wages can do little to dispose of an FLSA action without settling with the entire class.
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