The Fair Labor Standards Act authorizes "collective actions" into which workers seeking overtime or other compensation may opt.  But prospective opt-ins usually won’t know about their right to join a collective action unless they get notice of it.  And without notice they may lose their claims to expiry of the statute of limitations.

Today, the Ninth Circuit rejected an interlocutory effort to require such notice.  The court held that the "collateral order" doctrine didn’t apply because the plaintiffs could obtain effective relief after final judgment.  The court also refused mandamus relief.  McElmurry v. U.S. Bank Nat’l Ass’n , No. 05-36047 (9th Cir. Aug. 8, 2007).

Blawgletter sees good news and bad news in the outcome.  On the one hand, the rationale will allow FLSA cases in which courts grant collective action status and authorize notice to proceed without appellate delays.  But, on the other, this case will likely languish and may disappear as a result of the district court’s refusal to act.  C’est la guerre.

Barry Barnett

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