Transportation Executive Summary: Seventh Circuit Dismiss FLSA Appeal
In Acevedo v. Professional Transportation, Inc., the United States Court of Appeals for the Seventh Circuit dismissed a wage and hour collective action for lack of jurisdiction to hear the appeal. 120 F.4th 559, 565 (7th Cir. 2024). Professional Transportation’s employees drive railroad workers to their job sites. Id. at 561. Under the Fair Labor Standards Act[1] (“FLSA”), the drivers brought a collective action seeking damages for overtime and minimum-wage violations. Id. Although the district court had initially conditionally certified the collective action,[2] the district court later decertified the class, stating that “the collective action was overbroad.” Id.
Counsel then brought a second collective action in a different district court on behalf of the same workers who had opted into another pending collective action—the Crawford case. Id. at 562. This new collective action added a claim based on the formula used to determine “commute time adjustment” for trips to and from the job site. Id. When the case was transferred to the Southern District of Indiana, the court declined to certify the issues raised in Crawford but conditionally certified the new “commute time adjustment” claim. Id. More than 3,000 persons filed with the district court and consented to join this second suit. Id.
However, eventually, the district court decertified the collective action on the commute time claim, too, because the formula did not apply to all Professional Transportation locations in the same manner. Id. The plaintiffs appealed, but the Seventh Circuit dismissed the suit. Id.
The Seventh Circuit stated that the main issue on appeal was the lack of an appellant. Id. According to the FLSA, each plaintiff must consent in writing to join the collective action suit and file the consent with the court in which the action is brought. Id. Neither of these requirements were met. Id.
Counsel attached an exhibit listing the date each employee had consented to join the Crawford litigation. Id. However, being a party to the Crawford litigation did not meet the plaintiff's requirement to consent to the present action. Id. The employee’s counsel countered with three separate explanations: (1) the plaintiffs did not need written consent because they had consented to the earlier suit, (2) the plaintiffs authorized counsel to represent them for any claims related to Professional Transportation, and (3) the defendants waived the consent requirement by not raising it in the district court. Id. at 562–563.
The Seventh Circuit rejected all three explanations in turn. First, the present collective action is not a continuation of Crawford; therefore, the plaintiffs’ written consent cannot be transferred. Id. Second, the FLSA specifies that the filing must be for a specific suit, not about counsel having consent to act as a person’s agent. Id. at 563. Thus, whether the plaintiffs had consented to retain counsel from the Crawford action is immaterial. Id. Lastly, the defendants did not “waive” the consent requirement by not raising it in the district court. Filing consent to participate in a collective action is the only way to become a party to the suit—and only parties can appeal. Id.
The Seventh Circuit reiterated that “[r]equiring written consent protects the interests of persons who otherwise could have their rights adjudicated without their knowledge.” Id. Collective actions require parties to opt in, which cannot be done without filing consent with the court. Id. at 564. Some named plaintiffs later filed consent and became parties to this suit; however, none of the plaintiffs listed on the appeal ever filed consents. Id. Therefore, the Seventh Circuit lacked appellate jurisdiction and dismissed the appeal. Id.
This case demonstrates the importance of filing written consent with the court where the action is brought for a collective action. Unlike class actions, collective actions under the FLSA require an opt-in system—meaning that without the plaintiffs filing their consent, the court does not have jurisdiction to hear the claim. Such a state of affairs leaves the case subject to dismissal.
for more information
Contact John F. Fatino for more information about trucking and transportation regulatory matters at 515-288-6041. Maddie M. Meister, J.D. candidate, University of Iowa School of Law, assisted in the preparation of these materials.
[1] 29 U.S.C. §§ 201-219 (FLSA).
[2] This is the Crawford collective action, see Crawford v. Professional Transportation, Inc., No. 314CV00018RLYMPB, 2017 WL 1077660 (S.D. Ind. Mar. 22, 2017), motion to reconsider denied, 2017 WL 3535134 (S.D. Ind. Aug. 17, 2017).