News & Analysis as of

Conditional Certification

Constangy, Brooks, Smith & Prophete, LLP

Sixth Circuit adopts stricter standard for FLSA collective action notices

For years, litigation under the Fair Labor Standards Act has grown exponentially. In 2018 there were 8,824 FLSA lawsuits filed, in contrast with only 3,496 in 2008. A leading factor driving this trend is the near automatic...more

Sherman & Howard L.L.C.

Return to Cents? 6th Circuit Modifies FLSA Conditional Certification Standard

Good news for at least some employers facing Fair Labor Standards Act (FLSA) collective actions. In Clark v. A&L Home Care and Training Center et al., the 6th Circuit adopted a new standard for collective action conditional...more

Seyfarth Shaw LLP

A “Strong Likelihood” of Change: Sixth Circuit Joins the Fifth in Raising the FLSA Certification Bar

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Seyfarth Synopsis. Businesses familiar with FLSA litigation are aware of the frustrating ease with which some courts have turned single-plaintiff cases into large-scale collective action proceedings. But the tides are...more

Fox Rothschild LLP

The Times They Are A Changin’–A District Court Rejects The “Usual” Two Tier FLSA Class Action Certification Model

Fox Rothschild LLP on

The certification process for FLSA collective actions has typically been a two-step process. The first step is to secure conditional certification, which is often handed out as easily as a Santa Claus giving kids candy at...more

Jackson Lewis P.C.

Chipping Away at Two-Step Conditional Certification in FLSA Collective Actions

Jackson Lewis P.C. on

A federal district court located within the jurisdiction of the U.S. Court of Appeals for the Fourth Circuit has adopted the heightened standard for certification of a collective action under the Fair Labor Standards Act...more

Seyfarth Shaw LLP

Eastern District of Virginia Judge Rejects Two-Step Conditional Certification Process for FLSA Collective Actions

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Seyfarth Synopsis: In what could become a trend, Judge T.S. Ellis, III recently broke with other courts in the Eastern District of Virginia when he rejected the two-step conditional certification process commonly used in FLSA...more

BakerHostetler

District Court Rejects Conditional Certification of FLSA Claims Inserted into Data Breach Class

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Here’s a novel approach: What if you have an “off the clock” case where the court disfavors certification? Can you simply tack them onto claims in another pending class action lawsuit?...more

Epstein Becker & Green

Fifth Circuit Rejects Two-Step Approach for Certifying FLSA Collective Actions

In a provocative decision in the case known as Swales v. KLLM Transport Servs., L.L.C., No. 19-60847 (5th Cir. 2021), the U.S. Court of Appeals for the Fifth Circuit broke from the pack by upending the standard two-step...more

Sheppard Mullin Richter & Hampton LLP

Fifth Circuit Shuts Down FLSA Conditional Certification

In a decision of considerable significance in the world of wage and hour litigation, the United States Court of Appeals for the Fifth Circuit significantly departed from conventional standards for assessing conditional...more

Fox Rothschild LLP

Fifth Circuit Issues New Test For Determining Conditional Certification In FLSA Collective Actions: I Am Giddy!

Fox Rothschild LLP on

I have often lamented how easy it seems for plaintiffs to secure conditional certification in a FLSA collective action. A few Affidavits, often identical in content, are produced and then, voila, the plaintiff gets...more

Vinson & Elkins LLP

Fifth Circuit Upends FLSA Collective Action Process

Vinson & Elkins LLP on

As many readers of this blog know, the Fair Labor Standards Act (FLSA) allows employees to sue for overtime and minimum wage violations on behalf of themselves and those “similarly situated” in a “collective action.” FLSA...more

Constangy, Brooks, Smith & Prophete, LLP

Court Abolishes “Conditional Certification” Of Collective Actions

A groundbreaking ruling from the U.S. Court of Appeals for the Fifth Circuit threatens to upend decades of federal court practice concerning the management of collective actions brought under the Fair Labor Standards Act. ...more

BakerHostetler

A Lawful Job Description Doesn’t Support Conditional Certification

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Virtually every brief seeking conditional certification will point to an employer policy that allegedly ties the collective or class together. But as a growing number of courts are recognizing, a uniform policy is not...more

Fox Rothschild LLP

Flimsy Affidavit From Named Plaintiff Insufficient To Secure Conditional Certification In FLSA Collective Action: A Case For...

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It seems that plaintiffs (and their lawyers) think that all they have to do to get conditional certification is throw up a flimsy Affidavit from the named plaintiff and the Court will hand them conditional certification, like...more

BakerHostetler

Louisiana District Court Decertifies FLSA Class of Warehouse Supervisors

BakerHostetler on

We’ve noted many times that while employees prevail on most motions for conditional certification under the FLSA, employers tend to prevail on the second stage motion for decertification. ...more

Fox Rothschild LLP

Judge Signals Change On Certification Decision And Then Case Quickly Settles

Fox Rothschild LLP on

It is fairly easy for a plaintiff to get conditional certification in a FLSA class action case, but that is not the end of the story. The next step, much harder, is fending off the defendant’s anticipated motion to stop the...more

Fox Rothschild LLP

Nationwide FLSA Class Action Fails Because Out-of-State Plaintiffs Are Not Sufficiently Connected To State Where Lawsuit Filed: A...

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Many times, plaintiff lawyers will try to file FLSA class actions as nationwide lawsuits so the size of the class and potential recovery can be magnified geometrically. Well, that just got a little harder to do as a federal...more

Seyfarth Shaw LLP

Keeping it Local: Another Court Denies FLSA Conditional Certification Due to Lack of Personal Jurisdiction

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Seyfarth Synopsis: Furthering a recent trend, a judge in the District of Massachusetts denied a motion for conditional certification because there was no personal jurisdiction over non-Massachusetts entities with respect to...more

BakerHostetler

Tennessee District Court Refuses Conditional Certification of Class of Assistant Managers

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In collective actions under the FLSA, courts typically apply a lower standard to the first “conditional certification” stage. ...more

Fox Rothschild LLP

Joint Employer Angle Gives Interesting Twist To FLSA Truck Driver Collective Action

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The whole trick for a plaintiff (and his lawyers) in a FLSA collective action case is to try to get conditional certification. Once that happens, the stakes automatically escalate for the defendant-employer, often leaving...more

BakerHostetler

Illinois District Court Decertifies Equal Pay Act Collective Class Involving Physicians

BakerHostetler on

Section 16(b) of the Fair Labor Standards Act (FLSA) is the provision that requires those participating in a federal claim for minimum wages or overtime to opt in to the class, making Rule 23 inapplicable. The same...more

BakerHostetler

Missouri District Court Decertifies FLSA Class of IT Workers

BakerHostetler on

We’ve noted before that while conditional certification motions are often granted, such classes fare far less well at the second decertification stage and just as poorly on the eve of trial....more

McDermott Will & Emery

Analyzing ONC’s Proposed Rule: Fee Restrictions for Health IT and EHI

McDermott Will & Emery on

The ONC recently released a proposed rule under the 21st Century Cures Act to promote interoperability of health IT and advance access, exchange or use of electronic health information. If finalized, the proposed rule would...more

Seyfarth Shaw LLP

Don’t Judge A Conditional Certification Motion By Its Cover

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A New York federal court once again denied a motion for conditional certification of a nationwide collective action against Barnes & Noble. ...more

Fisher Phillips

Chadbourne Litigation Settles, Leaving Unanswered Questions About Equal Pay Claims

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The parties to a high-profile Equal Pay Act lawsuit have reached a multi-million dollar settlement that will be sure to capture the attention of employers across the country. Former partners of the law firm Chadbourne & Parke...more

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