Haro v. City of Rosemead
Filed June 9, 2009
Cite as 2009 SOS 3552

Individual Written Consent Indispensable under Section 216 (b)

Randy Haro and Robert Ballin (Appellants) filed a collective action against the City of Rosemead (respondent) under Title 29 U.S.C. § 216(b) which is a part of the Fair Labor Standards Act of 1938 (FLSA) seeking compensation for all hours worked.

The trial court rejected appellants motion to certify as a class the individuals who worked for respondent as nonexempt employees under California Code of Civil Procedure section 382 (section 382). Hence, an appeal from that order was filed. Appellants also filed a motion for leave to amend the complaint.

The California Court of Appeal, in denying the class action classification, ruled that appellants could not maintain such action under section 382 due to the following reasons:

1. Section 216 (b) states that an employee could only be a party plaintiff to a suit for minimum wages if he gives his consent in writing to be a party and such consent was filed in court. Absent a written consent from each plaintiff, FLSA’s opt-in provision barred class action certification of an FLSA suit.


2. While denial of a request for class certification is appealable pursuant to the knell doctrine, there were three reasons why application of such doctrine was not proper in this case.
   
   
   1. Appellants could not maintain FLSA action with the opt-in feature as a class action under section 382.
   
   
   2. Neither the trial court nor the appellate court addressed the substantive merits of the action which under the knell doctrine would be usually reviewed.
   
   
   3. The order denying class certification was not the death knell of the appellant’s action. There was nothing to prevent appellant’s action from going forward as an opt-in, collective FLSA action.


3. The trial court correctly denied the motion to amend the appellant’s complaint. An order denying leave to amend was only appealable if it has the effect of eliminating all issues between the plaintiff and a defendant so that there was nothing left to be tried or determined.

With the above considerations, the appeal court dismissed the appeals from the orders denying class action certification and denying leave to amend the complaint.