Colin Walsh
Texas Employer Lawyer Colin Walsh

Sometimes more than one plaintiff has the same claim against an entity.  When that happens are there generally three ways such a case can be brought.  One way is obviously to simply join all of the plaintiffs to the lawsuit.  If there simply are too many, then the plaintiff can try to certify a class action.  However, if the case involves minimum wage, overtime, or equal pay, then there is a third way, which is known as a collective action.  A few years ago, the Fifth Circuit changed how collective actions are certified by courts within the Fifth Circuit. That is what this blog is about.

Under the Fair Labor Standards Act there is a collective action procedure that allows an employee to bring an action against an employee on behalf of herself and any other “similarly situated” employees who elect in opt-in to the action. 29 U.S.C. § 216(b).  This opt-in procedure is quite different from a standard class action, which generally rquires a potential class member to opt out of the lawsuit.

In Swales v. KLLM Transport Services, the Fifth Circuit announced a new standard for collective certification that rejected the two-part Lusardi method that courts had previously used. 985 F.3d 430, 439 (5th Cir. 2021).  Under Swales, the new standard directs the district court to “identify, at the outset of the case, what facts and legal considerations will be material to determining whether a group of ‘employees’ is ‘similarly situated.’ And then it should authorize preliminary discovery accordingly.”  Id. at 441.  Once that discovery has concluded, the district court determines whether the proposed collective consists of similarly situated employees and whether merits questions can be answered collectively.  Id. at 442.  

If the district court decides the questions can be answered collectively, then it authorizes notice to be sent to the similarly situated employees.  Id.  Furthermore, the district court may elect to only give notice to certain “subcategories” of employees as opposed to all potential opt-ins, if the district court determines only those within the subcategory are determined to be “similarly situated” after reviewing discovery. Id. at 443.

In determining whether members of a potential collective are “similarly situated” for purposes of a collective action under the FLSA, of which the EPA is part, courts in the Eastern District look at three factors:

“(1) the disparate factual and employment settings of the proposed plaintiffs; (2) the various defenses available to the defendant which appear to be individual to each proposed plaintiff; and (3) fairness and procedural considerations.” Torres v. Chambers Protective Serv., Inc., No. 5:20-CV-212, 2021 WL 3419705, at *3 (N.D. Tex. Aug. 5, 2021). The term “similarly situated” does not mean that the proposed members are “identically situated.” Id. at *4. The court must instead ask whether the plaintiff has “demonstrated similarity among the individual situations.” Segovia v. Fuelco Energy LLC, No. SA-17-CV-1246-JKP, 2021 WL 2187956, at *8 (W.D. Tex. May 28, 2021). This can be done by showing a factual nexus that binds the plaintiff and the potential collective action members as alleged victims of a particular policy or practice. Id. Having some differences between the collective action members “will not preclude a collective action unless they are material to ultimate issues before the trial court.” Id. at *8. 

Roberts v. Baptist Healthcare Sys., LLC, No. 1:20-CV-00092-MAC, 2022 WL 4089819, at *3 (E.D. Tex. Aug. 9, 2022), report and recommendation adopted, No. 1:20-CV-92, 2022 WL 4084420 (E.D. Tex. Sept. 4, 2022).  

Collective actions are important because they incentivize attorneys to take low individual damage cases by allowing the attorneys to pursue multiple claims at once.  My firm has represented employees in collective actions both in and outside of Texas.  We have represented employees both in court and in arbitration. If you believe you are not being paid a minimum wage, not being paid overtime, or have an equal pay claim based on sex, then you should consider talking to an attorney about whether or not you have a case and whether that case can be pursued as a collective action.

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Photo of Colin W. Walsh Colin W. Walsh

We asked Colin W. Walsh, an experienced Trial Attorney in the Austin office of Wiley Walsh, P.C., to impart his candid answers to a range of questions.   After reading, you will be more more informed on the well-respected reputation that Mr. Walsh

We asked Colin W. Walsh, an experienced Trial Attorney in the Austin office of Wiley Walsh, P.C., to impart his candid answers to a range of questions.   After reading, you will be more more informed on the well-respected reputation that Mr. Walsh carries.

1. What do you like most about being an employment lawyer?

I enjoy getting tangible results for my clients and being involved in an area of law that affects everybody every day.

2. What is the most important issue to you of being an advocate?

One of the most important issues to me as an advocate is to not only zealously represent my clients, but also the law.

3. What kind of clients do you like best?

I like the clients that I am able to help who were not able to find help elsewhere.  On a couple of occasions now, a client has told me that my firm is the first one that has listened to his or her issue and offered any kind of assistance.

4. What do you think is the most important part of a good case?

The client.  If the client is not invested, then the other side won’t take it seriously and neither will the jury.

5. What labor and employment issues do you think are currently trending?

The biggest employment discrimination issues I see right now are related to age, disability, and pregnancy discrimination.  For some reason, these types of discrimination seem to be acceptable to employers.  The other issues right now are minimum wage and overtime pay.

6. Who is your favorite Supreme Court Justice?

Justice William Brennan.

7. What would you say to HR of a company about how to treat employees?

It would be to listen to your employees.  Most employees are not looking to sue when he or she goes to Human Resources.  These employees are sincerely looking for help.  Nothing makes an employee seek legal counsel like when he or she complains about something and HR starts investigating the employee instead of the complaint.

8. Besides Rob Wiley, P.C., what is the most interesting job that you have had?

The most interesting job I’ve had is working as an extra in film and television.  I should have known that I was destined to be a lawyer at that point because two of my biggest gigs were the TV show “Boston Legal” and the film Charlie Wilson’s War.

9. What is your favorite food?

Meat pies.  I first discovered them when I studied abroad in undergrad.  I can’t believe these have not caught on in the U.S. because they are brilliant.

10. What’s the best part of living in Austin?

All of the outdoor festivals.  And the Longhorns.

Colin W. Walsh is a Trial Attorney in the Austin office of Wiley Walsh, P.C.  He graduated from The University of Texas at Austin with a bachelor’s degree in theatre in 2006.  Mr. Walsh then graduated from The University of Texas School of Law with honors in 2011.