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Michael Cohen is an associate in the firm’s Labor + Employment Practice Group. He focuses his practice on representing employers in wage and hour class and collective actions, FMLA claims, ADA claims, restrictive covenant and trade secret litigation, and wrongful termination actions. He has extensive experience representing his clients before federal and state courts across the country, as well as federal, state, and local administrative agencies.

Q: Can an employee opt into an FLSA collective action if the employee does not reside in the state in which the action is pending?

A: Unless an action is filed in the state in which an employer is incorporated or headquartered, the answer to this question varies by jurisdiction. In August 2021, both the Sixth Circuit (covering federal courts in Kentucky, Michigan, Ohio, and Tennessee) and the Eighth Circuit (covering federal courts in Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota) answered this question in the negative, requiring that opt-in plaintiffs under the Fair Labor Standards Act (FLSA) reside in the state in which an action was filed for a court to exercise personal jurisdiction. Earlier this year, the First Circuit (covering federal courts in Maine, Massachusetts, New Hampshire, Puerto Rico, and Rhode Island) reached the opposite conclusion, reasoning that disallowing nonresident opt-in plaintiffs from joining FLSA collective actions would frustrate the purposes of the collective action mechanism.

On July 26, the Third Circuit (covering federal courts in Delaware, New Jersey, and Pennsylvania) sided with the Sixth and Eighth circuits, further nudging the existing circuit split in favor of employers.Continue Reading Third Circuit Limits Nonresident Opt-In Plaintiffs’ Ability to Join FLSA Collective Actions, Deepening Circuit Split