FLSA Collective Actions Against California Employers

“No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.” That sentence in 29 U.S.C. § 216(b) is what makes a federal overtime collective action different from a California class action. Workers have to opt in. For the employer, the fight is over who gets notice, who actually joins, and whether the people who join are actually alike.

What is an FLSA collective action?

It’s a federal wage lawsuit that other employees can join by filing written consents. Under section 216(b), an employer that violates the minimum wage or overtime rules is liable for the unpaid wages “and in an additional equal amount as liquidated damages,” and an action may be brought “by any one or more employees for and in behalf of himself or themselves and other employees similarly situated.” The statute also says the court “shall” award “a reasonable attorney’s fee to be paid by the defendant” when the employees win.

The Ninth Circuit doesn’t treat a collective as a class. In Campbell v. City of Los Angeles (9th Cir. 2018) 903 F.3d 1090, the court said a collective action “is more accurately described as a kind of mass action, in which aggrieved workers act as a collective of individual plaintiffs with individual cases.” That framing matters later, when the employer argues the individual cases don’t belong together.

What does preliminary or conditional certification actually do?

Less than most employers fear. In Genesis HealthCare Corp. v. Symczyk (2013) 569 U.S. 66, the Supreme Court explained that conditional certification “does not produce a class with an independent legal status, or join additional parties to the action.” The Court said, “The sole consequence of conditional certification is the sending of court-approved written notice to employees,” who become parties only by filing written consent.

The notice still matters a great deal. Every worker who files a consent adds a claim, and the size of the opt-in group drives the settlement value. The Supreme Court in Hoffmann-La Roche Inc. v. Sperling (1989) 493 U.S. 165 held “that district courts have discretion, in appropriate cases,” to facilitate notice. It also put a limit on that power: courts “must be scrupulous to respect judicial neutrality” and “must take care to avoid even the appearance of judicial endorsement of the merits of the action,” according to the opinion.

Does the Ninth Circuit still use the two-step process?

Yes. In Harrington v. Cracker Barrel Old Country Store, Inc. (9th Cir. 2025) 142 F.4th 678, the employer asked the court to drop the two-step approach and adopt a stricter one-step test used in another circuit. The Ninth Circuit declined, explaining that “our court has already endorsed the two-step approach, and we are bound by that precedent.”

So in California federal courts, the first step usually comes early and on a light record, and the employer’s main chance to break up the group comes later, at decertification. Campbell describes the test the employees must meet throughout: “party plaintiffs must be alike with regard to some material aspect of their litigation,” according to the opinion. The defense work between the two steps is building the record that shows they aren’t.

Can notice go to employees who signed arbitration agreements?

Not when it’s undisputed that they’re bound. Harrington held that “it is an abuse of discretion to authorize notice to employees if it is undisputed that their claims are subject to arbitration.” But where “the existence and validity of an arbitration agreement remains in dispute,” the trial court “is not required to rule on the arbitrability of absent employees’ claims prior to authorizing notice.”

That puts a premium on clean arbitration records. An employer that can show, with signed agreements and rollout records, which employees agreed to arbitrate is in a much stronger position to keep them out of the notice than one that can only say most people probably signed.

Can out-of-state employees join a California collective?

Not always. Harrington joined the majority of circuits and held that the Supreme Court’s personal jurisdiction rule in Bristol-Myers Squibb applies to FLSA collectives in federal court. Where jurisdiction is specific and not general, “the district court must assess whether each opt-in plaintiff’s claim bears a sufficient connection to the defendant’s activities in the forum state,” according to the opinion.

For a multistate employer that isn’t incorporated or headquartered in California, that can shrink a proposed nationwide collective to the employees who actually worked in the state.

How is a collective action different from a California wage class action?

California plaintiffs often file both theories in one federal case, a “hybrid” action. Code of Civil Procedure section 382 lets one or more sue “for the benefit of all” when “the parties are numerous,” and federal courts apply their own class rule to the state-law claims. The opt-in count on the FLSA side often tells the employer how much real interest there is in the case.

The timing rule is worth knowing. Under 29 U.S.C. § 256, a collective action is commenced for an individual claimant on the date that worker’s “written consent is filed in the court in which the action was commenced,” unless the worker was named and consented at filing. Each late opt-in’s claim is measured from the consent, not the complaint.

What should an employer do after being served with a collective action?

1. Put a written litigation hold on timekeeping and payroll data, schedules, pay policies, and every version of the handbook and arbitration agreement for the whole proposed group.
2. Calendar the response deadline on the summons, and notify any employment practices liability (EPLI) carrier whose policy requires it.
3. Identify the managers who set or applied the challenged practice in each location, and make sure no one takes action against the named plaintiffs or opt-ins that could look like retaliation.
4. Pull the arbitration records, including signed agreements, electronic acknowledgment logs, and opt-out records, so the company can show who’s bound before notice goes out.
5. Talk to a lawyer before communicating with current employees about the lawsuit, since contact with potential opt-ins is closely watched by courts.

Employers facing a wage case in federal court can read more about employer defense in California employment cases on the firm’s employment defense page.

FLSA collective action questions from California employers

Should we oppose preliminary certification?

Often, at least on scope. The standard at the first step is lenient, but the employer can still contest how wide the group is, which locations and job titles it covers, who gets notice, how notice is sent, and whether employees with arbitration agreements or no California connection should be left out. Narrowing the notice usually does more than fighting certification outright.

Can we talk to employees about the case after notice goes out?

Carefully, and only after legal advice. Courts supervise the notice process to keep it neutral, and communications that pressure employees not to join, or that look like retaliation, can lead to corrective notice or sanctions. Ordinary business communications can continue, but anything about the lawsuit should be reviewed first.

What happens at decertification?

After discovery, the employer can ask the court to decertify on the ground that the opt-ins aren’t similarly situated. Under Campbell, they must be alike in some material aspect of their litigation. Different managers, different schedules, or different pay practices across locations can support decertification, which sends the opt-ins back to individual claims.

Does settling an FLSA collective action need court approval?

Many federal courts in California review FLSA settlements, and any settlement with a hybrid class component needs approval under the federal class rule. The release language matters, since an FLSA release generally binds only those who opted in. The agreement should be drafted with both the collective and any class claims in mind.

If your company has been sued in a federal overtime collective action

If your company has been served with an FLSA collective action, the scope of the notice and the arbitration records usually decide how large the case becomes. Rosenberger + Kawabata represents employers defending employment lawsuits and claims through its business litigation practice, including claims involving overtime and minimum wage collective actions. Contact Rosenberger + Kawabata online for a confidential consultation, or call (310) 894-6921.

Sources

The statutes are 29 U.S.C. § 216, 29 U.S.C. § 256, and Code of Civil Procedure section 382. The decisions are Hoffmann-La Roche Inc. v. Sperling (1989) 493 U.S. 165, Genesis HealthCare Corp. v. Symczyk (2013) 569 U.S. 66, Campbell v. City of Los Angeles (9th Cir. 2018) 903 F.3d 1090, and Harrington v. Cracker Barrel Old Country Store, Inc. (9th Cir. 2025) 142 F.4th 678.

This post is general information about California and federal employment law as of November 7, 2026. It is not legal advice, and reading it does not create an attorney-client relationship. Employment statutes, regulations, and court decisions change often, and the outcome of any claim depends on its facts. Past results do not guarantee future outcomes.