The Supreme Court has agreed to review a decision out of the Third Circuit, Genesis Health Care Corp. v. Symczyk, 656 F.3d 189 (3rd Cir. 2011), where the court held that an employee may proceed with a collective action under the FLSA despite rejecting a Rule 68 Offer of Judgment which would have made the plaintiff whole. The employer argued that the offer resolved the case and, without a controversy, the case is moot and should be dismissed. The court, however, decided that to allow such a tactic would effectively prevent collective actions from getting off the ground as the employer would just "pick off" each plaintiff before a motion to certify could be granted.
This case could give the Supreme Court an opportunity to dramatically reduce wage and hour litigation by making it harder to initiate a collective action. This case is one to watch in the next term.
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