On March 27, 2012, a unanimous three-judge panel of the Third
Circuit Court of Appeals issued an opinion in Knepper v. Rite
Aid, Inc. reversing the district court's ruling that the
plaintiffs could not pursue state wage and hour claims as a Rule 23
class action alongside parallel Fair Labor Standards Act (FLSA)
collective action claims. The decision makes the Third Circuit one
of five federal appellate courts to reject employers' arguments
against this practice, and it paves the way for plaintiffs to
continue to pursue such hybrid actions in the future.
Under § 216(b) of the FLSA, an employee can only become a
party to an FLSA action if "he gives his consent in writing to
become such a party and such consent is filed in the court in which
such action is brought." Accordingly, claims under the FLSA
cannot be pursued as opt-out class actions under Rule 23. However,
plaintiffs frequently file "hybrid" actions that combine
claims under state wage and hour laws, which can b
