The FLSA provides that “[n]o employee shall be a party plaintiff” to a collective action “unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.” 29 U.S.C. § 216(b). The consensus among courts has been that this provision requires an employee to file a separate, signed writing indicating a clear intent to become a plaintiff, and that neither the mere filing of a complaint in which the employee’s name is captioned nor the employee’s providing deposition testimony in addition to such a complaint will suffice. The recent decision in D’Antuono v. C & G of Groton, Inc., No. 11-0033, 2012 WL 1188197 (D. Conn. Apr. 9, 2012) [pdf], represents a departure from this consensus and from the statutory text. It should not be followed.
D’Antuono involves claims by strip club dancers that they were misclassified as independent contractors and unlawfully denied minimum wages. Defendants moved for summary judgment as to one dancer named in the complaint on the grounds that her failure to file a consent form within three years of her last performance at the club made her claims untimely. In denying the motion, the court held that the dancer had filed timely consent because she had filed a declaration in opposition to an earlier motion to dismiss, stating that:
Given my current financial circumstances . . . I cannot afford to arbitrate my claims and I could not afford to undertake this litigation and pursue my rights if I had the risk of paying the Defendants’ costs if I lost at arbitration.
Id. at *3. The court held that this language met the consent requirement because it “implied” the dancer’s interest in litigating and preserving her rights in the suit.
In reaching this result, the court admitted there were no closely analogous cases. Nevertheless, it rejected Defendants’ attempt to distinguish cases where courts had deemed a declaration filed in support of class certification as sufficient consent where the declaration stated “I am the Named Plaintiff” in this action. The court reasoned that it was immaterial that the dancer-plaintiff’s declaration lacked such an express statement or that her declaration was unassociated with class certification.
The court also distinguished a case where the named plaintiff’s declaration was deemed insufficient consent where it stated, “[I do] not release any claims relating to unpaid wages which are the subject of this litigation.” The court reasoned that, unlike that language, the dancer-plaintiff’s language “manifest[ed] a clear intent to be a party plaintiff” because it could be read “broadly as implicitly verifying the complaint, expressing an interest that legal action be taken to protect her rights, and expressing an interest in being a party plaintiff.” Id. at *4.
Finally, to bolster its ruling, the court noted that the dancer-plaintiff had satisfied the two “presumably” possible purposes of the FLSA consent requirement – that an employee be required to (1) notify defendant of his or her plaintiff-status, and (2) take a step beyond the complaint that ensured he or she was not just a “procedural figurehead” for “an enterprising class action” attorney. Id. at *2. The court reasoned, respectively, that (1) Defendants knew of plaintiff (her name was in the case caption on her declaration), and (2) she had voluntarily attended her deposition (evincing an intent to participate in the suit). The court did not explain why satisfaction of these underlying, “presumed” purposes of the consent requirement was probative. Indeed, given that the caption of the complaint itself notified Defendants of plaintiff and that courts have all rejected deposition attendance as enough to satisfy the consent requirement, the dancer-plaintiff’s satisfaction of these “presumed” purposes should be irrelevant.
In short, the D’Antuono court’s construction of the FLSA consent requirement is irreconcilable with other decisions and is premised on unpersuasive reasoning. If an employee’s mere submission of a declaration asserting a financial inability to pursue litigation, if he or she also had arbitrate and pay defense costs if unsuccessful, is enough to meet the consent requirement, it would appear that virtually anything is enough – rendering the statutory requirement a nullity. Other courts should view D’Antuono as aberrant, and they should not follow it.