Author: Michael Cardman, XpertHR Legal Editor

U.S. Supreme Court justices today questioned why an offer of judgment made to a lone plaintiff in a Fair Labor Standards Act lawsuit should not prevent other plaintiffs from joining the lawsuit in a collective action.

During oral arguments in Symczyk v. Genesis Healthcare Corp., +656 F.3d 189 (3d Cir. Pa. 2011), cert. granted, +2012 U.S. LEXIS 4744 (U.S. June 25, 2012) (No. 11-1059), the Court directed some of its most pointed questions to attorneys representing the employee-plaintiff and the U.S. Department of Labor, who had argued that the offer of judgment was a strategic attempt to short circuit the lawsuit before additional plaintiffs could opt in.

"How does [a plaintiff refusing to accept an offer of judgment] differ from an employee who ... is annoyed for a variety of reasons at the employer and he sues the employer for his pay, for his pay for the month of October?" Justice Stephen Breyer asked, according to the official court transcript. "The employer says: He got his pay; I -- I sent him the check; I mean, he gets it every month. And he says: Yes, but I didn't cash the check.Is there a case for controversy? He can go sue for his paycheck that he didn't cash?"

Chief Justice John Roberts followed a similar line, asking, "Why are you arguing so much? You will have an entry of judgment in the favor of your client who is, according to you, simply situated to lots of others. Why don't you just, if somebody comes forward, just take them in, go in, you get a check for $7,500 or whatever it is, you get attorney's fees, and you can do that as often as you want?"

A ruling in favor of the defendant would make it more difficult for employees to file the types of multi-million dollar FLSA lawsuits that have become common in recent years. But of course, the questions asked during oral arguments don't always predict how the Court will eventually rule.