11th Circuit: Putative Opt-in Plaintiffs are Parties to Litigation – Even After Conditional Certification is Denied

by Littler

In many suits filed as collective actions under the Fair Labor Standards Act (FLSA), individuals hoping to join the action as opt-in plaintiffs submit consents to join the lawsuit even before the named plaintiff moves for conditional certification of the collective. Companies and courts are often unsure how to treat these “putative opt-in” participants before the court certifies any collective action: Are they subject to discovery? If the matter is settled, must they be included? If summary judgment is granted on the named plaintiff’s claims, what happens to the claims of the putative opt-ins? Are they dismissed?  With or without prejudice? 

These practical matters raise a larger issue: Are these people parties to the lawsuit before any court-approved notice process?

The Eleventh Circuit – one of the most active wage and hour jurisdictions in the country – answered that question earlier this month, in a case of first impression: Mickles et al. v. Country Club, Inc. Considering a unique set of factual circumstances, the court concluded that filing a written consent – even in a matter that is never certified as a collective action – is sufficient to bestow “party plaintiff” status to a putative opt-in plaintiff.


Named Plaintiff Mickles filed a complaint on behalf of herself and “all other similarly situated employees” against her former employer, Country Club, Inc., alleging that she was improperly classified as an independent contractor and improperly denied overtime wages and statutory minimum wages, in violation of the FLSA. Three other employees filed “consents to join” the litigation, all prior to any motion for conditional certification.1

Plaintiff Mickles filed a motion for conditional certification nearly eight months after the deadline established in the case scheduling order. The district court denied the motion as untimely. Significantly, the order denying the motion for conditional certification did not address the status of the three opt-in plaintiffs who had already filed consents to join the lawsuit.

The defendant filed a motion for clarification, inquiring whether the three opt-in plaintiffs were part of the litigation, and took the position that they were effectively dismissed when the motion for conditional certification was denied. The plaintiff agreed that clarification was necessary, but took the position that the three opt-in plaintiffs were still, and had always been, parties to the litigation.

The district court agreed with defendant, and held that the three opt-in plaintiffs were never adjudicated to be “similarly situated” to Named Plaintiff Mickels and, therefore, were never properly added as party plaintiffs to a collective action. Notably, this is not an uncommon conclusion. Myriad district courts routinely dismiss putative opt-in plaintiffs without prejudice when conditional certification is denied, summary judgment is granted, or a later collective action is decertified.

Plaintiff Mickels and Defendant Country Club went on to reach a settlement of Mickels’s claims, but the three opt-in plaintiffs were not included in the settlement.  The three opt-in plaintiffs appealed the district court’s decision on the motion for conditional certification, and the later clarification that they were not parties to the lawsuit.2

On appeal, the Eleventh Circuit reversed and found that the three putative opt-in plaintiffs were, in fact, parties to the litigation upon filing their consents to join, regardless of the outcome of the conditional certification or notice process. The court identified two requirements in the FLSA to confer party status on an opt-in plaintiff: (1) the named plaintiff must file her complaint on behalf of herself and “other similarly situated” employees and (2) the opt-in plaintiff must give her “consent in writing” to become a party to the lawsuit. See 29 U.S.C. § 216(b). Because Section 216(b) does not anticipate or mandate a “conditional certification” process, the court reasoned, there is no implied requirement in the statute necessitating anything more than a collective complaint and a written consent to join to confer party status to a putative opt-in plaintiff. Of course, Section 216(b) does anticipate prior court approval for notice, which is, in most collective actions, what prompts most opt-in plaintiffs to consent to join.

Curiously, the court relied on Genesis Healthcare Corp. v. Symczyk,3 the landmark decision by the Supreme Court which held that the mere presence of “opt-in plaintiffs” did not preserve any ongoing interest in the litigation by the named plaintiff, if the named plaintiff’s own claims were moot.  The Court in Genesis specifically noted, “The sole consequence of conditional certification is the sending of court-approved written notice to employees . . . who in turn become parties to a collective action only by filing written consent with the court.” Federal courts and defense-side litigators – including this author – have interpreted this passage from Genesis to mean that opt-in plaintiffs lack any party status prior to a court-approved notice process made through Section 216(b), at least insofar as opt-in plaintiffs are regularly dismissed without prejudice when a named plaintiff’s claims are dismissed prior to collective certification. The Mickels decision controverts that rationale, instead reasoning that the court-approved process is entirely unnecessary to confer party status; for now, at least in the Eleventh Circuit, it appears any person can be a party upon filing their written consent at any time in an FLSA case.


In many ways, the Mickles decision raises more questions than it answers: if any putative opt-in plaintiff is a party plaintiff prior to court-approved notice, is a defendant company entitled to depose them all under Federal Rule of Civil Procedure 30(a)(1), regardless of any order to bifurcate discovery? If the named plaintiff’s claims are mooted or otherwise dismissed, as they were in Genesis, is it no longer proper to dismiss putative opt-in plaintiffs without prejudice; does the litigation simply carry on with other the plaintiffs? What impact do these decisions have on equitable tolling of the FLSA’s statute of limitations?  

One lesson is relatively clear, however: When settling litigation styled as an FLSA collective action, involving persons who have expressed interest and raised their own claims, consider resolving the claims of all the plaintiffs, regardless of their status in the litigation – not just the named plaintiff.



1 One additional employee filed a consent to join, but was dismissed from the suit for failing to appear at her deposition.

2 The Eleventh Circuit also addressed the timeliness of the appeal, concluding that the final judgment was the first appealable issue the opt-in plaintiffs could pursue and, accordingly, their appeal was timely filed.

3 569 U.S. 66 (2013).


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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