In a Fair Labor Standards Act (“FLSA”) collective action against Applebee’s, the U.S. District Court for the Western District of Missouri denied Applebee’s motion to compel interrogatories which required each of nearly 5,600 opt-in employees to account for all duties performed at work since May 2005.  In reaching its decision, the court held that the interrogatories were unduly burdensome and that Applebee’s failed to meet the necessary threshold requirements to compel discovery.   This decision is significant because it reminds employers that they should not rely on the discovery process to determine employees’ work hours, but instead should satisfy their duty under the law which is to create and maintain accurate time records for each employee. 

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In Sandoz v. Cingular Wireless, the Fifth Circuit held that if an employee files a timely motion for certification of a collective action under the Fair Labor Standards Act (“FLSA”) that motion relates back to the date the employee filed the initial complaint and prevents an employer from mooting an attempted FLSA collective action by paying the representative employee in full.  This ruling is significant because it demonstrates that while an offer of judgment can moot a FLSA collective action, the relation back principle prevents employers from using Rule 68 as a tool to “pick off” representative employees and avoid ever having to face collective actions.  Thus, finding that the mootness of Ms. Sandoz’s FLSA claim rests on whether she timely filed a motion to certify her collective action, the Fifth Circuit remanded the case to the district court for a consideration of the timeliness and, if necessary, the merits of Ms. Sandoz’s motion to certify. 

For information on The Employment Law Group® law firm’s Wage and Hour practice, click here.