At the end of its recently completed term, the U.S. Supreme Court agreed to review a procedural decision that could have a significant impact on collective action wage and hour claims. As with most such claims, the plaintiffs' attorneys use a representative named plaintiff, and then sue on behalf of that person and a similarly situated class.

In Genesis HealthCare Corp. v. Symczyk, the employer made an offer of judgment to the named plaintiff under Rule 68 of the Federal Rules of Civil Procedure. This rule allows defendants to attempt to end litigation by paying the plaintiff what they claim in the lawsuit. In this case, the offer of judgment would have satisfied the named plaintiff's claims in full, but would have defeated the collective action claim prior to certification because of the lack of an individual representative employee. The plaintiff refused the offer, but the district court dismissed her claim for lack of any continuing personal interest in the matter.

The Third Circuit Court of Appeals reversed the dismissal, characterizing the Rule 68 offer as an attempt to pick off the named plaintiff, and defeat collective action certification. The Supreme Court will review the question of whether offers of judgment can be made in collective action FLSA claim. Procedurally, these claims differ from traditional class actions, where such offers are permitted.

Federal courts have differed on this question, and the Court's decision could have a significant impact on both collective action FLSA claims, as well as the use of offers of judgment in regular class action matters. Oral arguments will be held later this year, with a decision likely in 2013.