Senator Forest C Donnell asked for a revision on 29 U.S.C. 216 (b) of fair labor standard act 1938.

Figure: Senator Forrest c. Donnell (1884-a980)

The substantive portions of the Portal-to-Portal Act embody the Eightieth Congress’s pro-business leaning. The Act totally barred retros pective FLSA portal pay claims and greatly limited prospective suits. Importantly, the Act eliminated “representative actions” in 216(b) by banning non-employee “agents” or “representatives.”” The amended version of § 216(b) created the modern-day collective action:

An action to recover the liability prescribed in either of the preceding sentences may be maintained against any employer (including a public agency) in any Federal or State court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated. 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. 

Under this new language, only aggrieved employees may represent a class of fellow co-workers.” Those who wish to join the suit must opt-in to the collective action by giving their consent “in writing.”72 This scheme reduces class sizes because litigants must take the extra step of notifying similarly situated employees and awaiting their response. Senator Forrest C. Donnell pushed for the revision of § 216(b) in order to “ban all actions on behalf of employees who had no knowledge or involvement in the litigation.” 4 Even though Senator Donnell did not fully articulate his reasons for promoting the amendment, he likely targeted union-backed suits.” Indeed, before the amendment of section 216(b), unorganized workers rarely brought any kind of FLSA suit, let alone representative actions. 6 However genuine, Senator Donnell also questioned the theoretical underpinnings of representative actions.” He deplored the idea of an uninterested party suing on behalf of thousands of unaware employees. 8 In his view, it would be “unwholesome” if these employees suddenly appeared in droves to collect a favorable judgment well after the statute of limitations had passed. This underlying fear of potentially infinite liability (along with anti-union animus) drove Senator Donnell to lobby against representative actions.”‘ As a result, the amended § 216(b) facilitated the core policy aims of the Portal-to-Portal Act because it eliminated representative actions and restricted the potential for FLSA claims against employers.

Article about senator Donnell’s observation

Article about Rule 23 and Collective Actions

New York State Labor Law

Federal Labor Law

Department of Labor Wages and Hour Division 2004

Fact Sheet Application of the Fair Labor Standards Act to Domestic Service

Fact Sheet 25 Home Health Care and the Companionship Services Exemption Under the Fair Labor Standards Act (FLSA)

Department of Labor Wages and Hour Division 2013

The Fair Labor Standards Act (FLSA): An Overview