Conditional Certification in Second OT Collective Action Granted Against GEICO

A recent ruling in the United States District Court for the District of Maryland reaffirms a defining characteristic of the collective action.

Potential claimants’ legal rights are preserved unless and until they affirmatively agree to “opt in” to the litigation. They may elect to participate, file an individual lawsuit or do nothing at all.

With class actions, which proceed under Federal Rule of Civil Procedure 23, the situation is reversed. Potential claimants must affirmatively “opt out” of a certified action otherwise their legal rights will be resolved in the litigation.

As such, inaction by potential claimants may result in very different consequences depending on whether the claims are being resolved under the FLSA or Rule 23.

In Vetter v. GEICO General Insurance Company, et al., No. 8:13-cv-00642 (D. Md. Sept. 25, 2013), the court was confronted with a second motion for conditional certification and judicial notice under the FLSA for a group of GEICO Security Investigators who the plaintiffs claimed had been misclassified as exempt and, thus, not owed overtime pay.

Defendants claimed that the plaintiffs were precluded from seeking collective treatment in the latter case because they had previously received notice in a prior case and elected not to participate.

However, the plaintiffs correctly argued that the law is clear that the opt-in provision of FLSA provides for no legal effect on those parties who choose not to participate. Despite the identical nature of the two proceedings, the plaintiffs also argued that a second judicial notice was still appropriate because the prior notice was obviously ineffective to notify potential plaintiffs of their right to opt in to the new case.

The court sided with the plaintiffs and granted the motion for conditional certification and judicial notice.

Abbey Spanier, LLP, located in New York City, is a well-recognized national class action and complex litigation law firm.