A part-time retail employee in Louisiana worked for a year before resigning. Then she sued, charging that the way her former employer paid part-time workers for extra hours worked violated the minimum wage provisions of the Fair Labor Standards Act (FLSA). When notified of the suit, the employer offered to settle with the employee, but she refused.

What happened. “Gomez” was a part-time sales consultant for Cingular Wireless in Lafayette for parts of 2004 and 2005. When she filed her original complaint in state court, she was the only plaintiff. Then Cingular received the complaint in 2007 and offered to settle with Gomez for $1,000 plus attorney’s fees. Cingular moved her suit to federal court and argued that it should be dismissed. But a judge in federal district court refused to do so, and Gomez filed a motion to certify a class of all Cingular Wireless part-time salespeople as plaintiffs. Cingular appealed to the 5th Circuit, which covers Louisiana, Mississippi, and Texas.

What the court said. Appellate judges noted that the 5th Circuit had never considered this issue before. The offer Cingular made to Gomez would have satisfied her complaint in full, which suggested that her collective action should be halted. One reason is that FLSA class action suits are “opt-in” classes, meaning that further plaintiffs must identify themselves and move to join the suit. When Cingular made its offer, Gomez was the only plaintiff. Some other class action suits are “opt-out,” meaning that covered plaintiffs are automatically included unless they elect to drop out. But judges said if Gomez’s suit were dismissed, that “would provide an incentive for employers to use [the federal rule involved] to pick off representative plaintiffs and avoid ever having to face a collective action.”

So they chose to apply the “relation back doctrine”—plaintiffs can relate back to when they originally requested class certification. The next issue they faced was whether Gomez had filed the class action motion “without undue delay.” In fact, it came 13 months after her original complaint. So they sent the case back to the district court, where the judge will decide whether the delay was too long to qualify the suit to go forward. Sandoz v. Cingular Wireless, U.S. Court of Appeals for the 5th Circuit, No. 08-30769 (12/23/08).

Point to remember: The district court judge can also rule on whether the plaintiff had good reason to include the whole class of workers, so the final outcome of this case is not certain. The only certainty is that it cannot be quickly dismissed, so the employer could still incur back-pay expenses.