Ever wonder what happened to the case of the “exotic dancers” who claimed that they were misclassified as independent contractors?

Well, the case continues and yesterday, the federal court denied a summary judgment filed the strip club on a technical issue that is probably overlooked by employers in many instances.  You can download the decision in D’Antuono v. C&G of Groton, Inc. here.   

Under a wage & hour (FLSA) collective action, a litigant may not be a party plaintiff unless he or she gives “consent in writing to become such a party and such consent is filed in the court which such action is brought.”  If it is not done in time, the statute of limitations (two or three years, depending on the facts of the case) may preclude the suit.

The filing of a complaint is not enough to satisfy this requirement.  There has to be some written consent. 

In this case, the court was confronted whether a plaintiff’s signed affidavit, attached an exhibit in opposition to a motion to dismiss, consistuted signed written consent.  In that affidavit, the plaintiff stated:

Given my current financial circumstances and my understanding of the costs associated with arbitration, I cannot afford to arbitrate my claims and I could not afford to undertake this litigation and pursue my rights if I had the risk of paying the Defendants’ costs if I lost at arbitration.

The federal court said that it could not find a case similar to this one.  Thus, the court was left to decide whether this statement manifests a “clear intent to be a party plaintiff.” 

The court concluded that it was a “close one” and it would not have arisen if the plaintiff’s attorney had “simply ensured that a written consent form was filed along with the complaint.” 

Despite this “lapse”, the court concluded that her affidavit was enough and denied the defendant’s motion for summary judgment. 

For employers, this case is a good reminder that wage & hour collective actions are complicated and contain several procedural hurdles for the employees.   Although the defendant here was not successful in its challenge, its still important for employers to seek out experienced counsel who can spot those issues.