Biden Nominee Will Decide Future of FLSA Collective Actions

By Steve Dunn


If confirmed, President Biden’s nominee to the Supreme Court, Ketanji Brown Jackson, will likely participate in deciding a critical issue in FLSA collective action litigation: whether federal courts have jurisdiction over employers as to FLSA claims brought by people who worked outside the forum state. The Court’s decision will have broad implications on the location and scope of lawsuits affecting worker pay.


The legal issue arises from the Supreme Court’s 2017 decision in Bristol-Myers Squibb v. Superior Court of California, a case brought by individuals alleging they were injured by the blood thinning medication, Plavix. Plaintiffs were nonresidents of California, but sued in California court, arguing the state had jurisdiction because their injuries were similar to those suffered by California residents. The Supreme Court disagreed, holding the plaintiff’s claims were insufficiently connected to the company’s activities in California.


Although Bristol-Myers Squibb did not involve the FLSA, employers around the country began arguing its holding should bar collective action wage claims by nonresidents of the employer’s forum state. In August 2021, the Sixth and Eighth Circuits agreed, ruling that courts may not exercise jurisdiction over FLSA claims by employees who did not work, and were not paid, in the forum state.


However, on January 13, 2022, the First Circuit Court of Appeals decided the opposite, holding the constitutional limits on a state court’s jurisdiction in Bristol-Myers Squibb did not bar a federal court from exercising jurisdiction over claims based on federal wage law. In a 2-1 vote, the First Circuit panel emphasized Congress intended there to be broad participation in FLSA collective actions.


This decision created a split in the federal circuits, which greatly increases the probability the Supreme Court will step in to resolve the issue. Enter Ketanji Brown Jackson, who was nominated to replace retiring Justice Stephen Breyer. If confirmed by the Senate, Jackson will likely participate in ruling on whether the Bristol-Myers Squibb rule applies to FLSA collective actions.


On the surface, Jackson’s nomination seems unlikely to shift the ideological balance of the Court. Breyer was nominated by Bill Clinton in 1994 and is generally identified with the Court’s liberal wing. Jackson’s confirmation will not change the Court’s 6-3 conservative majority.


Jackson’s biography suggests she would be a mainstream jurist. She was born in 1970, grew up in Miami, and went to Harvard for both college and law school. Jackson clerked for three federal judges, including Breyer, and worked at the US Sentencing Commission, the Federal Public Defender’s Office, and in private practice, where she represented clients in both civil and criminal matters. In 2012, President Obama nominated Jackson to the District Court for the District of Columbia and in 2021 she was elevated to the DC Circuit Court of Appeals.


Judge Jackson’s record is consistent with expectations of a Democratic appointee, but it is not purely ideological. Although she has gained notoriety for her rulings against the Trump administration’s expansive interpretation of executive power, she also ruled similarly against the Obama administration, ordering it to comply with a FOIA request for Hillary Clinton’s emails. While her record is generally supportive of plaintiffs in civil rights cases and she has ruled against police officers asserting qualified immunity, Jackson also ruled in favor of the Trump administration in cases involving environmental cases involving a domestic oil pipeline and the border wall.


There is little in Jackson’s record to suggest how she might vote on a case involving jurisdiction over nonresidents’ collective action claims under the FLSA. Bristol-Myers Squibb itself was not a close case. Justice Sotomayor was the lone dissenter in an 8-1 vote, based in part on her concern its ruling would make it difficult to aggregate claims across the country where each claim may be worth little alone. Ultimately, the issue may turn on the significance of the differences between state and federal jurisdiction, and between products liability law and the FLSA.


This much seems clear: the Supreme Court is likely to issue a decision resolving the circuit split which will have far-reaching implications for FLSA litigation. If confirmed, Ketanji Brown Jackson will participate in that decision and other employment cases potentially for decades to come.




Before devoting himself to dispute resolution full-time in 2019, Steve Dunn practiced employment law in Charlotte for over 20 years. His practice included FLSA, wage and hour, trade secrets, non-competes, and all forms of employment discrimination. Representing diverse clients from individual executives to Fortune 500 companies, Steve worked in industries including financial services, education, manufacturing, technology, construction, marketing, retail, and motorsports. As a mediator, Steve is persistent and engaged, tirelessly advocating for resolution before, during, and after the mediation.