Employers who find themselves confronted with a putative collective action lawsuit under the FLSA typically take immediate steps to limit exposure, both within and outside the litigation. One procedural tool employers seek to avail themselves of is the Offer of Judgment, authorized by Federal Rule of Civil Procedure 68. Using this mechanism, an employer seeks to offer “full relief” to the named plaintiff or plaintiffs who seek to represent the collective, and then argues to the court that the case has been “mooted,” and must be dismissed, without notice to putative collective action participants under 29 U.S.C. § 216(b). This approach has met with mixed results, even within the same federal judicial district, depending on the specific procedural stance in each case. Compare Briggs v. Arthur T. Mott Real Estate LLC, 2006 U.S. Dist. LEXIS 82891 (E.D.N.Y. Nov. 14, 2006)(Offer rendered case moot, notwithstanding collective action allegations) with Velasquez v. Digital Page, Inc., 2012 U.S. Dist. LEXIS 13684 (E.D.N.Y. Feb. 2, 2012)(presence of opt-in plaintiff and pendency of motion for conditional certification negated “mootness” argument).

Now, just days after issuing a seminal decision on FLSA issues in the ongoing pharmaceutical sales representative litigations which potentially expands the judiciary’s view of the breadth of exemptions, the Supreme Court has granted an unsuccessful FLSA defendant’s petition for review of the Third Circuit’s decision overturning the District Court and rejecting its attempt to utilize the offer of judgment to make the case moot, Symczyk v. Genesis Healthcare Corp., 656 F.3d 189 (3d Cir. 2011) petition granted at 2012 U.S. LEXIS 4744 (U.S. 2012).

FLSA compliance and litigation are a business reality. Symczyk will provide employers with guidance on the scope of procedural mechanisms available to limit exposure, and provide practitioners with direction regarding the applicability of the offer of judgment mechanism, and, possibly, the temporal limitations attendant to such strategy.