Ervin v. OS Restaurant Servs., Inc., 09-3029

Issue of compatibility between employees' FLSA proceeding and proposed class action

Ervin v. OS Restaurant Servs., Inc., 09-3029, concerned a challenge to the district court's denial of plaintiffs' effort to proceed as a class under Rule 23(b)(3) on the ground that there is a clear incompatibility between the plaintiffs' FLSA proceeding and their proposed class action, in plaintiffs' suit against their employer under the FLSA, the Illinois Minimum Wage Law (IMWL), and the Illinois Wage Payment and Collection Act, claiming that the employer violated the minimum wage and maximum hour provisions of both the FLSA and the IMWL.


In reversing and remanding, the court held that there is no categorical rule against certifying a Rule 23(b)(3) state law class action in a proceeding that also includes a collective action brought under the FLSA because nothing in the text of the FLSA or the procedures established by the statute suggests either that the FLSA was intended generally to oust other ordinary procedures used in federal court or that class actions in particular could not be combined with an FLSA proceeding.

Related Link:

• Read the Seventh Circuit's Full Decision in Ervin v. OS Restaurant Servs., Inc., 09-3029