We have blogged in the past whether offering back pay and other expenses to a plaintiff in a lawsuit under the Fair Labor Standards Act (FLSA) can “kill” the lawsuit. Some courts have recognized that offering the plaintiff full back pay and expenses makes the lawsuit “moot,” even if the plaintiff rejects the offer. Other courts have refused to dismiss an FLSA case after the plaintiff accepted the offered back pay, fees and expenses. Enter the U.S. Supreme Court and the case of Genesis Healthcare Corp. v. Symczyk. We thought we would get our answer to whether offering back pay, expenses, and fees would be a foolproof way to get an FLSA case tossed. Well, not really.

To set the stage, a brief discussion of the facts is necessary. Symczyk sued her former employer under the FLSA on behalf of herself and others similarly situated. No one else joined her lawsuit. The former employer offered Symczyk $7,500 for unpaid wages plus reasonable attorneys’ fees, costs, and expenses. Symczyk ignored the offer and it expired. The former employer then filed a motion to dismiss the case on the grounds of mootness, i.e., Symczyk no longer had a good claim because the former employer offered her the best relief that the court could award her. The trial court said that an offer like the one given to Symczyk voided her claim, and she agreed that her claim was moot. The case ended up before the Supreme Court on the issue of whether the offer also meant that Symczyk could no longer bring the collective claim of the similarly situated employees who never joined her lawsuit.

The question that intrigued us is whether the offer of full back pay, attorneys’ fees, costs, expenses, etc. would defeat the FLSA lawsuit, even if the plaintiff rejected it. The five Supreme Court justices making up the majority punted on the issue. Because Symczyk had agreed that her claim was gone based on the law in her jurisdiction, the majority assumed her claim was moot and never explored the issue. The majority went on to rule that because Symczyk’s individual claim was moot she could no longer advance the collective action and the entire case was properly dismissed.

Sticking with the football analogy, Justice Kagan stiff armed the majority and called them a bunch of dolts. The dissent said that the offer Symczyk ignored did not void her claim. Justice Kagan warned lower courts to rethink their “mootness-by-unaccepted-offer theory.” She also warned other courts who have not weighed in on the issue to reject the theory.

The law is still unsettled. No plaintiff in his or her right mind will ever again consent or agree that an unaccepted offer moots an FLSA claim. Nor will they admit that an accepted offer moots their claim. (See our post on Dionne.) We are back where we started. While offers of full back pay and fees likely will not kill the FLSA lawsuit, they may serve as an effective tool to limit the attorneys’ fees the plaintiff could ultimately recover.