A class action brought pursuant to the Fair Labor Standards Act (FLSA) requires a
proactive class. Unlike Rule 23 class actions, in which class
members must affirmatively opt out in order to be excluded from the
class, FLSA class actions require that potential class members
notify the court of their desire to opt into the action. Just how
far can plaintiffs go in soliciting potential class members? A
recent case explores the balance between honoring the First
Amendment rights of plaintiffs in communicating with a pool of
potential class members and ensuring that defendants do not suffer
irreparable harm.
In Hathaway v. Shawn Jones Masonry, a
Kentucky district court refused to interfere with the rights of a
plaintiff to communicate with other potential plaintiffs in a
putative FLSA class action. Michael Hathaway sued his former
employer, Shawn Jones Masonry (SJM), alleging violations of the
FLSA. To encourage other employees to join the class action suit,
Hathaway
