Chico Marx once said that he would like the west better if it were in the east. That is a line for employers to ponder in the wake of the Supreme Court’s decision in Genesis Healthcare Corp. v. Symczyk, holding that a Fair Labor Standards Act (“FLSA”) collective action was moot once the individual plaintiff failed to accept an offer of judgment. Although it’s tempting to declare this 5-4 decision a victory for employers, is that more of Chico’s desiring the improbable?
Symczyk claimed that her employer’s policy of automatically deducting 30 minutes per shift for meal breaks violated the FLSA because she and other nursing employees regularly worked during their meal break time. In a majority opinion authored by Justice Thomas, the Supreme Court ruled that the plaintiff’s failure to accept an offer of judgment that admittedly would have made her whole stripped her of a personal stake in the litigation, making her claim and the entire collective action moot.
Although Circuits are split as to whether unaccepted offers of judgment moot an individual’s claim, Thomas’s majority opinion is conspicuously silent on that point. Indeed, the majority never says that is enough to moot a claim but only that Symcyzk waived any argument that it isn’t. Thus, other employers can get lucky if, but only if, unaccepted offers of judgment provide a practical device for handling FLSA collective actions. Is that more than Chico’s wishful thinking? Not bloody likely.
First, only a minority of circuits (the Third, Fourth, Seventh and potentially the Fifth) treat unaccepted offers of judgment as having this effect. Second, those cases fly in the face of the literal language of Rule 68’s instructions on the effect of an unaccepted offer of judgment, prompting Justice Kagan in her dissent to issue a harsh warning (that the majority declined to contest): “a note to all other courts of appeal: Do not try this at home.” Third, post-Genesis, plaintiffs will seldom – if ever – again concede that the offer provides full relief. Justice Kagan is not far wrong in her suggestion: “Feel free to relegate the majority’s decision to the furthest reaches of your mind: The situation it addresses should never again rise.”
But, assume that it could be pulled off, wouldn’t that be cool? Sure but with intrinsic limitations. This works only if the damages are indisputable: possible in Smyczyk’s meal break case but not in the bulk of FLSA litigation (off the clock, donning/doffing, overtime, etc.). It is also possible only if there is but a single plaintiff and her waiving a check to her co-workers doesn’t provoke additional clients for her lawyer. Besides, are you troubled by an accepted offer of judgment having preclusive effect (another unsettled issue) for those future plaintiffs?
If the west could be put in the east and if employers could get the same gift that Genesis did, both Chico and management would be happy. However, Chico knew better, as he explained to Groucho in A Night At The Opera in rejecting another unexamined “conventional wisdom” of legal pontification:
Groucho: “That’s in every contract, that’s what you call a sanity clause.”
Chico: “You can’t a fool a me: there ain’t no Santy Claus.”