Section 16(b) of the Fair Labor Standards Act, as amended by section
5 of the Portal Act, no longer permits an employee or employees to
designate an agent or representative (other than a member of the
affected group) to maintain, an action for and in behalf of all
employees similarly situated. Collective actions brought by an employee
or employees (a real party in interest) for and in behalf of himself or
themselves and other employees similarly situated may still be brought
in accordance with the provisions of section 16(b). With respect to
these actions, the amendment provides that no employee shall be a party
plaintiff to any such action unless he gives his consent in writing to
become such a party and such consent is filed in the court in which such
action is brought. The amendment is expressly limited to actions which
are commenced on or after the date of enactment of the Portal Act.
Representative actions which were pending on May 14, 1947 are not
affected by this amendment.126 However, under sections 6 and
8 of the Portal Act, a collective or representative action commenced
prior to such date will be barred as to an individual claimant who was
not specifically named as a party plaintiff to the action on or before
September 11, 1947, if his written consent to become such a party is not
filed with the court within a prescribed period.127
---------------------------------------------------------------------------
126 Conference Report, p. 13.
127 Conference Report, pp. 14, 15. The claimant must file
this consent within the shorter of the following two periods: (1) Two
years, or (2) the period prescribed by the applicable State Statute of
limitations. See Conference Report, p. 15.
---------------------------------------------------------------------------
