FEDERAL TAILS AND STATE PUPPY DOGS: PREEMPTING PARALLEL STATE WAGE CLAIMS TO PRESERVE THE INTEGRITY OF FEDERAL GROUP WAGE ACTIONS

Rachel K. Alexander, University of South Dakota School of Law

Abstract

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.