Federal Tails and State Puppy Dogs: Preempting Parallel State Wage Claims to Preserve the Integrity of Federal Group Wage Actions

This article addresses the flood of litigation washing through United States federal courts on wage-and-hour group actions and the divergent corresponding district-court rulings. The rapidly growing split in authority relates to the fact that federal law requires that a group wage action be maintained as an opt-in "collective action" while state wage laws may be pursued through an opt-out "class action." With little circuit-court authority on the matter, the parties' arguments and courts' analysis fall all over the map. Despite the myriad of arguments in support of and in opposition to maintaining a state-law opt-out class action in the same suit as a federal opt-in collective action, this article posits that the proper view is through the lens of preemption and that a preemption analysis not only prevents the parties and courts from wasting time and financial resources litigating the propriety of a state-law class action but protects both absent claimants' federal wage claims and Congress's intent in requiring an opt-in action.