Kevin Calderone v. Michael Scott

MARTIN, Circuit Judge:

This interlocutory appeal asks whether employees may maintain a collective action against their employer under § 216(b) of the Fair Labor Standards Act of 1938 (“FLSA”), 29 U.S.C. § 201 et seq„ at the same time as a class action brought based on state law and pursuant to Federal Rule of Civil Procedure 23(b)(3). The FLSA’s § 216(b) requires plaintiffs to “opt in” to be considered class members. In contrast, a Rule 23(b)(3) class action requires plaintiffs to “opt out” if they do not wish to be bound by the court’s judgment. The District Court found that, under LaChapelle…