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Recent Developments In Collective Action Certification Under The Fair Labor Standards Act

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The Fair Labor Standards Act (FLSA) has long been the primary vehicle through which employees seek to recover alleged unpaid minimum wage and overtime. Written before the modern class action device was developed, the FLSA has a unique mechanism through which employees can join together in a single action to bring unpaid minimum wage and overtime claims on a collective basis. Courts have long interpreted this mechanism as giving them the ability to issue notice to individuals who might have such claims, not for the purpose of giving them the option of opting out of the suit, but rather to give them the option of affirmatively joining the suit.

For decades, courts almost universally agreed that this notice should issue based only on a “lenient” showing that a group of “similarly situated” individuals might want to bring similar claims. Applying this lenient standard, courts have sent notice of FLSA lawsuits at a rate that far exceeds the rate at which workplace class actions are certified. Nowhere is this felt more than in Florida, which has long been a hotbed of FLSA litigation.

Two recent decisions — one from the Fifth Circuit and one from the Sixth Circuit — have called into question the prevailing lenient standard for sending notice and giving individuals the option to opt-in to pending FLSA litigation. This article explores the development of the FLSA’s unique collective action mechanism, the practical effects of the prevailing standard for certifying the actions, the reasons the Fifth and Sixth circuits gave for adopting new standards, and suggests ways practitioners in Florida, particularly on the defense side, can leverage these decisions in their own cases.

The Fair Labor Standards Act

The FLSA, enacted in 1938, established nationwide minimum wage and overtime obligations. At the time of its passage, the modern version of the rule that allows federal court class actions, Rule 23 of the Federal Rules of Civil Procedure, was still decades away.[1] While courts had long recognized “the practical necessity of providing a procedural device so that mere numbers would not disable large groups of individuals, united in interest, from enforcing their equitable rights,”[2] there was a lot of “confusion and uncertainty” about whether and how federal courts could decide the claims of individuals who were not before the court.[3]

Congress tried to resolve this confusion and uncertainty in the original version of the FLSA by giving both “employees and their ‘representatives’ the right to bring actions to recover amounts due under the FLSA.”[4] These “representatives” did not have to be employees themselves; indeed, many “representatives” who had no “personal interest in the outcome” of the litigation brought suit to recover wages for other individuals in the decade that followed passage of the FLSA.[5]

In response to what Congress believed was “excessive representative litigation,” Congress amended the FLSA in 1947 in the Portal-to-Portal Act and eliminated the provision allowing for “representative” actions.[6] In its place, Congress introduced a new mechanism by which “similarly situated” employees could jointly prosecute claims against their employers.[7] In order to “limit[] private FLSA plaintiffs to employees who asserted claims in their own right and freeing employers of the burden of representative actions,” Congress provided that only individuals who provide “consent in writing” can participate in such a joint action.[8]

These joint actions, which are governed by 29 U.S.C. §216(b), came to be called “collective actions” to distinguish them from “class actions,” which were governed by Fed. R. Civ. P. 23.[9] “Probably the most significant difference” between collective actions and class actions is in the method by which one becomes part of the case and bound by the judgment.[10] To be part of or bound by a collective action, an individual must actually file a written consent with a court.[11] Rule 23 “take[s] the opposite approach,” where individuals who meet the definition of any certified class are bound by the judgment unless they affirmatively opt-out of the case.[12]

A Spike in Fair Labor Standards Act Litigation and Development of the Lusardi Two-Step Process

For 50 years or so following passage of the Portal-to-Portal Act, FLSA litigation was, at least relative to today, uncommon. The 1990s “saw a substantial uptick in the number of FLSA claims filed,” and the pace at which FLSA cases were filed increased dramatically starting around the turn of the 21st century.[13] In 2000, there were 1,935 FLSA cases filed in federal court.[14] By 2012, the number rose to 8,152 cases.[15]

Nowhere was this spike in FLSA cases more consequential than in Florida. From 2004 to 2009, for instance, 28.7% of all FLSA cases filed in federal court were filed in the Southern District of Florida.[16] In 2009, 20% of the cases pending in the Middle District of Florida were FLSA cases.[17]

That trend continues to the present day. In 2019, for example, the Southern District of Florida was home to the newest FLSA cases, with 812 filings, while the Middle District of Florida came in fourth with 517 new FLSA cases.[18]

With this uptick in FLSA cases, courts increasingly dealt with the question of how to manage multi-employee actions. The text of the FLSA itself gives little direction. The relevant text reads as follows:

An action to recover the liability prescribed in 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.[19]

As a result of a lack of detail in the statute’s text, courts have been left to decide key questions, such as what does it mean to be similarly situated? When and how should the court decide whether individuals are similarly situated? What if multiple employees sue but are not similarly situated? [20]

In 1987, the U.S. District Court for the District of New Jersey tried to answer these questions in Lusardi v. Xerox Corp., 118 F.R.D. 351 (D.N.J. 1987). The court decided that the best way to manage FLSA actions is through a now-familiar two-stage certification process. At the first stage — called “conditional certification” — the court decides whether to send notice of or an invitation to join the lawsuit to current and former employees who fit within the definition of the proposed collective.[21] This decision “is made using a fairly lenient standard, and typically results in ‘conditional certification’ of a representative class.”[22] Typically, this decision is also made “based only on the pleadings and any affidavits which have been submitted,”[23] and courts do not even make “a preliminary assessment of the merits of the [underlying] claims” at this stage.[24]

After notice is sent, individuals decide whether to join the lawsuit. On average, between 15 and 30% of individuals who receive notice will opt-in to the suit.[25] Discovery is taken, and then the court decides whether the individuals are, in fact, “similarly situated” such that the case can proceed to trial as a collective action in the “final certification” or “decertification” phase.[26] At this phase, the court undertakes a more rigorous analysis of the question of whether the individuals who joined the suit after receiving notice — often referred to as the “opt-ins” — and named plaintiffs are similarly situated.[27] If they are similarly situated, the claims of all plaintiffs and opt-ins proceed to trial. If they are not, the claims of the opt-ins are dismissed without prejudice and the named plaintiffs proceed to trial solely on their own claims.[28] Opt-ins can then pursue individual actions, which they have already given the named plaintiffs’ attorneys consent to do on their behalf when they opted in.

For reasons that are not entirely clear, the process used by the court in Lusardi became the default method for managing collective actions across the country.[29] The 11th Circuit, for example, endorsed the Lusardi approach in 2001 in Hipp v. Liberty Nat. Life Ins. Co., 252 F.3d 1208 (11th Cir. 2001), finding that while the Lusardi approach is not required under the FLSA, it “appear[ed] to be an effective tool for district courts to use in managing these often complex cases,” and, thus, “suggest[ed] that district courts in this circuit adopt it in future cases.”[30] The Second Circuit, Third Circuit, and 10th Circuit have come to similar conclusions.[31]

To be sure, there were, and still are, significant variations in how courts in various circuits apply Lusardi.[32] For instance, the Seventh Circuit has taken the position that many, if not all, of the standards that apply in deciding whether to certify a Rule 23 class action apply to final certification of FLSA claims.[33] The Sixth Circuit and Ninth Circuit took the opposite view, finding that applying Rule 23 to collective actions would frustrate the purpose of the FLSA.[34] Regardless of these differences, courts consistently found that FLSA collective actions should go through two certification steps, with the first step requiring only a “lenient” showing to achieve conditional certification.[35]

As a practical matter, application of the “fairly lenient” conditional certification standard had significant consequences. First, the standard resulted in certification of far more FLSA actions than any other type of workplace claim.[36] In 2016, for instance, federal courts conditionally certified 147 FLSA collective actions, while certifying only four discrimination class actions and eight ERISA class actions.[37] As another example, federal courts conditionally certified 226 FLSA collective actions in 2021, while they certified only 13 discrimination class actions and eight ERISA class actions in the same year.[38]

A second practical effect of the two-step certification process is the significant number of settlements that take place after conditional certification but before final certification.[39] Only a very small percentage of conditionally certified collective actions get to the final certification/decertification stage. In 2015, for example, federal courts issued only 22 final certification decisions while issuing 167 conditional certification decisions.[40] In 2021, they issued 19 final certification decisions, compared with 279 conditional certification decisions.[41]

A third practical effect of the two-step certification process is that there is very little caselaw from circuit courts of appeal and the Supreme Court addressing the first step of the Lusardi standard.[42] Procedurally, since a conditional certification decision is non-final and not appealable as of right, a defendant’s only real chance to have an appellate court address the Lusardi conditional certification standard is through a permissive interlocutory appeal or through an even more difficult route such as mandamus.[43]

The Fifth Circuit Rejects the Lenient Conditional Certification Standard

In 2021, the Fifth Circuit became the first circuit court of appeals to challenge the prevailing “lenient” conditional certification standard after agreeing to hear an interlocutory appeal. In Swales v. KLLM Transport Servs, LLC, 985 F. 3d 430 (5th Cir. 2021), plaintiffs, who were classified as independent contractors, drove trucks for defendant, a refrigerated goods transport company.[44] Plaintiffs sued, alleging that they and other truck drivers were misclassified as independent contractors and, thus, defendant did not pay them the required minimum wage.[45] The district court granted conditional certification, finding that “the claims and defenses largely turn on the same questions, like whether the drivers were misclassified as independent contractors, a decision determined by the ‘economic-realities test.’”[46] When the defendant “pointed to evidence showing that the application of the economic-realities test to [p]laintiffs and [o]pt-ins would require a highly individualized inquiry,” the district court found that “it could not consider anything related to the economic-realities test at the pre-notice stage because the test was a ‘merits issue’ to be dealt with after discovery was complete.”[47] Nevertheless, the district court certified its conditional certification decision for interlocutory appeal.[48]

The Fifth Circuit, in reversing the decision of the district court, became the first circuit court of appeals to reject the two-step Lusardi certification standard. It did so for three reasons: 1) The Fifth Circuit found that Lusardi was applied inconsistently, creating “confusion” and giving district courts “little help in guiding [them] in their notice sending authority”[49]; 2) the Fifth Circuit found the lack of any reference in the FLSA to “certification,” much less “conditional certification,” weighed against a finding that the FLSA requires a two-step certification process[50]; and 3) the Fifth Circuit observed that application of a lenient conditional certification standard resulted in notice going to employees who ultimately had no claim and/or were not similarly situated.[51]

The Fifth Circuit went on to find that the FLSA requires that district courts decide whether employees are actually “similarly situated” before sending notice.[52] It took the position that courts confronted with collective actions should first “identify, at the outset of the case, what facts and legal considerations will be material to determining whether a group of ‘employees’ is ‘similarly situated,’” then should “authorize preliminary discovery accordingly.”[53] After this discovery, the court should consider “all of the available evidence” in deciding whether there is a group of similarly situated individuals, regardless of whether such evidence goes to the merits of the underlying claims.[54]

After Swales, defendants in many district courts outside of the Fifth Circuit argued — almost always unsuccessfully — that courts should apply Swales before sending notice of a collective action to potential opt-ins.[55] In In re New Albertsons, Inc., No. 21-2577, 2021 WL 4028428 (7th Cir. Sept. 1, 2021), the Seventh Circuit became the first circuit court of appeals to confront the Swales standard, but it avoided addressing the merits of Swales, holding instead that plaintiffs had not met their high burden of showing an entitlement to mandamus relief.

The Sixth Circuit Also Rejects Lusardi and Proposes a Preliminary Injunction Standard

In May 2023, the Sixth Circuit became the first circuit court of appeals to actually address the merits of Swales in Clark v. A&L Homecare & Training Ctr., LLC, 68 F.4th 1003 (6th Cir. 2023). In that case, plaintiffs, a number of former home-health aides, alleged that their employer did not pay them overtime at the correct rate and failed to reimburse business expenses.[56] In the district court, plaintiffs argued that the court should adopt the Lusardi approach and issue notice based on a lenient showing.[57] Defendants argued that the district court should “make a ‘final’ determination of substantial similarity” before issuing notice, arguing this was required under Swales. [58] Observing that the Sixth Circuit had not addressed Lusardi and that the Fifth Circuit had rejected Lusardi in Swales, the district court certified this issue for an interlocutory appeal.[59]

The Sixth Circuit rejected both the Lusardi and Swales approaches.[60] Starting with Lusardi, the Sixth Circuit began its analysis by pointing out that the FLSA does not say anything about “certification” of anything.[61] It continued by pointing out that collective actions are fundamentally different from class actions in that 1) opt-ins, unlike absent class members, “become parties with the same status in relation to the claims of the lawsuit as do the named plaintiffs”; and 2) unlike certifying a class action, sending notice to potential opt-ins “has zero effect on the character of the underlying suit.”[62] “In sum, under Rule 23, the district court certifies the action itself as a class action; whereas in an FLSA action, under §216(b), the district court simply adds parties to the suit.”[63]

The Sixth Circuit further observed that the Supreme Court had previously warned that “notice must not ‘in form or function’ resemble ‘the solicitation of claims.’”[64] It found that sending notice based on a “lenient” showing would result in notice going to individuals “who are not, in fact, eligible to join the suit,” which “amounts to solicitation of those employees to bring suits of their own.”[65] Based on these considerations, the Sixth Circuit rejected Lusardi.[66]

The Sixth Circuit also rejected the defendants’ interpretation of Swales. The Sixth Circuit observed that the Supreme Court referred to those receiving notice of a collective action as “potential plaintiffs.”[67] The Sixth Circuit found that this could mean either 1) that only individuals who are actually similarly situated should receive notice; or 2) that individuals who might be similarly situated receive notice.[68] Concluding that the Fifth Circuit’s Swales decision meant the former while the Supreme Court endorsed the latter, the Sixth Circuit rejected Swales.[69]

The Sixth Circuit then found that a preliminary injunction standard was the proper standard for sending notice because, like issuing a preliminary injunction, sending notice has a real effect on the litigation and parties, but at the same time the decision to send notice does not make anything “final.”[70] It explained this preliminary injunction standard as follows:

[F]or a district court to facilitate notice of an FLSA suit to other employees, the plaintiffs must show a “strong likelihood” that those employees are similarly situated to the plaintiffs themselves. That standard requires a showing greater than the one necessary to create a genuine issue of fact, but less than the one necessary to show a preponderance.[71]

What’s Next In Collective Actions

Given that two circuit courts of appeal have now rejected Lusardi, each taking different approaches, the obvious question facing practitioners in Florida (and across the country) is how to approach FLSA collective actions in light of these recent rulings. On the one hand, the 11th Circuit’s position is inconsistent with that of the Fifth and Sixth circuits in that the 11th Circuit has endorsed the Lusardi approach as one acceptable method to handle FLSA cases. On the other hand, the 11th Circuit has repeatedly stated that the Lusardi approach is not required,[72] and Swales and Clark at the least present alternative methods for handling FLSA cases.

Plaintiffs’ attorneys have argued — and presumably will continue to argue — that Florida courts should apply the Lusardi lenient conditional certification standard in light of the fact it has been endorsed by the 11th Circuit.[73] Unless and until the 11th Circuit (or U.S. Supreme Court) issues something new on how to manage FLSA cases, reliance on this prior endorsement certainly appears to be a good strategy, and to date plaintiffs have succeeded when making this argument to district courts in Florida.[74]

Can employers’ counsel nevertheless convince a district court to apply something other than Lusardi, such as the standards proposed by either the Fifth or the Sixth Circuit in Swales and Clark? A few decisions from district courts within the 11th Circuit outside of Florida suggest a potential method.

In Green v. Atlas Senior Living, LLC, No. 21-CV-237, 2022 WL 2007398, at *1 (S.D. Ga. June 6, 2022), plaintiffs sued their employer, claiming that their employer automatically deducted 30 minutes for meal breaks even though plaintiffs and a putative collective worked through meal breaks. Plaintiffs filed a motion to conditionally certify the action and send notice to potential opt-ins, after which the parties engaged in four months of discovery.[75]

Defendant then opposed conditional certification, arguing that the deposition testimony of plaintiffs showed they and the putative collective were not similarly situated.[76] Plaintiffs argued that the court should postpone consideration of the deposition evidence until the second, final certification phase and decide the conditional certification motion based on the lenient Lusardi standard.[77]

The court rejected plaintiffs’ position. It observed that “[r]igid adherence” to the Lusardi standard “would potentially result in the Court granting [p]laintiffs’ motion for conditional certification despite already possessing evidence which would require it to grant a motion for decertification.”[78] It found that such adherence was not justified in light of the stated purpose of the Lusardi standard — judicial economy — and the potential of “cross[ing] the line from using notice as a case-management tool to using notice as a claims-solicitation tool.”[79] The court further observed that the reason the conditional certification standard is so lenient is because the decision is typically made “prior to discovery and before plaintiffs have an opportunity to marshal their best evidence.”[80] Ultimately, after considering the evidence, the court in Green found that it showed that “it w[ould] be impossible for [p]laintiffs to establish liability on a class-wide basis,” and, therefore, denied certification.[81]

In Broome v. CRST Malone, Inc., No. 19-CV-01917, 2022 WL 205675, at *1 (N.D. Ala. Jan. 21, 2022), plaintiff alleged that he and a group of similarly situated individuals were misclassified as independent contractors. The court found that the reasoning of the Fifth Circuit in Swales was persuasive because it encouraged efficiency:

The analysis in Swales is helpful because the Fifth Circuit’s notice process requires a district court to tailor early discovery to the issues that the court ultimately will have to examine to decide whether an FLSA action for unpaid wages may proceed on a collective basis. The Swales process promotes efficiency by ensuring that the time and expense inherent in the distribution of notice is warranted. The Swales process enables parties to forego that time and expense in cases that are unmanageable on a collective basis because employees’ potential wage claims do not rest on common issues of law and fact.[82]

The court went on to apply Swales based on its persuasive reasoning and the fact that the 11th Circuit held that courts are not required to follow Lusardi.[83] The court ordered two months of discovery.[84] After considering the evidence acquired during discovery, the court found that a subset of the collective proposed by plaintiffs was similarly situated to plaintiffs, and ordered notice be sent to those individuals.[85]

These cases suggest that defense counsel seeking to convince a district court to apply something other than the Lusardi lenient conditional certification standard take three steps at the outset of any alleged collective action: 1) they should issue and pursue limited, targeted discovery on the “similarly situated” question as quickly as the rules allow; 2) in conjunction with this discovery, they should emphasize in any relevant court filings — such as Rule 26(f) scheduling reports, motions to compel discovery, or motions to stay consideration of early conditional certification motions pending discovery — the efficiency that can be gained through targeted discovery, consideration of competing evidence, and consideration of “merits” issues at the notice stage; and 3) they should also emphasize in court filings the problem of soliciting claims.


While it is true that, from a legal perspective, “[t]he sole consequence of conditional certification is the sending of court-approved written notice to employees,”[86] the practical effects of sending notice are often far-reaching. Courts grant a significant number of conditional certification motions but decide very few motions seeking to decertify or finally certify those actions because conditionally certified actions frequently settle. Even in cases that do not settle and ultimately are decertified, litigation can be far from over, as opt-ins have already given plaintiffs’ counsel consent to file individual actions on their behalf and plaintiffs’ counsel at least sometimes follow through and file such suits.[87]

Swales and Clark represent the first decisions at the federal appellate level that challenge the Lusardi lenient certification standard that has been applied in so many cases and has led to these results. Practitioners in Florida should familiarize themselves with the cases because, at the least, they provide significant persuasive authority that the lenient conditional certification standard long used in FLSA cases should not be applied, while at the same time waiting to see how the 11th Circuit addresses this new authority.

[1] Charles A. Wright, et al., 7A Fed. Prac. & Proc. Civ. §1751 (4th ed.).

[2] Id. (quoting Montgomery Ward & Co. v. Langer, 168 F.2d 182, 187 (8th Cir. 1948)).

[3] Wright, et al., 7A Fed. Prac. & Proc. Civ. §1751 (4th ed.).

[4] Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 173 (1989).

[5] Id.

[6] Id.; Knepper v. Rite Aid Corp., 675 F.3d 249, 255 (3d Cir. 2012).

[7] Hoffmann-La Roche, 493 U.S. at 173; Canaday v. Anthem Cos., Inc., 9 F.4th 392, 402 (6th Cir. 2021), cert. denied, 142 S. Ct. 2777 (2022); Scott v. Chipotle Mexican Grill, Inc., 954 F.3d 502, 519 (2d Cir. 2020); 7B Fed. Prac. & Proc. Civ. §1807.

[8] Hoffmann-La Roche, 493 U.S. at 173; 29 U.S.C. §216(b).

[9] Wright, et al., 7B Fed. Prac. & Proc. Civ. §1807 (3d ed.).

[10] Id.

[11] Id.

[12] Id.

[13] Keith William Diener, Judicial Approval of FLSA Back Wages Settlement Agreements, 35 Hofstra Lab. & Emp. L. J. 25, 34 (2017); Rosemary Sage Jones, The FLSA Wage and Hour Epidemic, 69 The Advoc. (Texas) 70 (2014).

[14] Id.

[15] Id.

[16] Hamm v. TBC Corp., 597 F. Supp. 2d 1338, 1340 (S.D. Fla. 2009).

[17] Bonetti v. Embarq Mgmt. Co., 715 F. Supp. 2d 1222, 1225 (M.D. Fla. 2009).

[18] Christopher M. Cascino, The Fair Labor Standards Act and Other Wage and Hour Laws, Fla. Bar Florida Small Business Practice (11th ed.).

[19] 29 U.S.C. §216(b).

[20] Joseph M. McLaughlin, 1 McLaughlin on Class Actions §2:16 (19th ed.).

[21] Id.; Lusardi, 118 F.R.D. at 361; Clark v. A&L Homecare & Training Ctr., LLC, 68 F.4th 1003, 1008 (6th Cir. 2023).

[22] Hipp v. Liberty Nat. Life Ins. Co., 252 F.3d 1208, 1218 (11th Cir. 2001); 7 Newberg and Rubenstein on Class Actions §23:38 (6th ed.) (“Conditional certification is liberally granted.. . . courts err on the side of sending notice.”).

[23] Hipp, 252 F.3d at 1218.

[24] McLaughlin, 1 McLaughlin on Class Actions §2:16.

[25] Lonny Hoffman & Christian J. Ward, The Limits of Comprehensive Peace: The Example of the FLSA, 38 Berkeley J. Emp. & Lab. L. 265, 270 (2017) (citing Julius Getman & Dan Getman, Winning the FLSA Battle: How Corporations Use Arbitration Clauses to Avoid Judges, Juries, Plaintiffs, and Laws, 86 St. John’s L. Rev. 447, 451 (2012); Matthew W. Lampe & E. Michael Rossman, Procedural Approaches for Countering the Dual-Filed FLSA Collective Action and State-Law Wage Class Action, 20 Lab. Law. 311, 314 (2005)).

[26] Clark, 68 F.4th at 1008; McLaughlin, 1 McLaughlin on Class Actions §2:16.

[27] Clark, 68 F.4th at 1008; McLaughlin, 1 McLaughlin on Class Actions §2:16; Hipp, 252 F.3d at 1218.

[28] Mickles v. Country Club Inc., 887 F.3d 1270, 1280 (11th Cir. 2018).

[29] Clark, 68 F.4th at 1008; Swales v. KLLM Transp. Servs., L.L.C., 985 F.3d 430, 436 (5th Cir. 2021); William Rubenstein, et al., 7 Newberg and Rubenstein on Class Actions §23:37 (“About half the circuits have embraced the Lusardi approach and most courts across the circuits use it.”).

[30] Hipp, 252 F.3d at 1219.

[31] Scott v. Chipotle Mexican Grill, Inc., 954 F.3d 502, 515 (2d Cir. 2020); Karlo v. Pittsburgh Glass Works, LLC, 849 F.3d 61, 85-86 (3d Cir. 2017); Thiessen v. Gen. Elec. Cap. Corp., 267 F.3d 1095, 1105 (10th Cir. 2001).

[32] Swales, 985 F.3d at 439.

[33] Espenscheid v. DirectSat USA, LLC, 705 F.3d 770, 772 (7th Cir. 2013) (“Indeed, despite the difference between a collective action and a class action and the absence from the collective-action section of the Fair Labor Standards Act of the kind of detailed procedural provisions found in Rule 23, there isn’t a good reason to have different standards for the certification of the two different types of action, and the case law has largely merged the standards, though with some terminological differences.”) (citation omitted); Rubenstein, et al., 7 Newberg and Rubenstein on Class Actions §23:37 (“A few courts have handled that task by simply applying some version of Rule 23 standards to FLSA cases.”).

[34] Monroe v. FTS USA, LLC, 860 F.3d 389, 405 (6th Cir. 2017); Campbell v. City of Los Angeles, 903 F.3d 1090, 1117 (9th Cir. 2018).

[35] See, e.g., Hipp, 252 F.3d at 1218; Swales, 985 F.3d at 434; Clark, 68 F.3d at 1008; Zavala v. Wal Mart Stores Inc., 691 F.3d 527, 535 (3d Cir. 2012); Waters v. Day & Zimmermann NPS, Inc., 23 F.4th 84, 89 (1st Cir.), cert. denied, 213 L. Ed. 2d 1016, 142 S. Ct. 2777 (2022).

[36] Seyfarth Shaw LLP, 18th Annual Workplace Class Action Report 2 (2022), available at

[37] Id. at 13.

[38] Id. at 9.

[39] Multiple courts have commented on the “formidable settlement pressure” that results from conditional certification, e.g., Swales, 985 F.3d at 436; Clark, 68 F.4th at 1005 (“Yet the decision to send notice of an FLSA suit to other employees is often a dispositive one, in the sense of forcing a defendant to settle — because the issuance of notice can easily expand the plaintiffs’ ranks a hundredfold.”).

[40] Seyfarth Shaw, 18th Annual Workplace Class Action Report at 13.

[41] Id. at 9.

[42] Rubenstein, et al., 7 Newberg and Rubenstein on Class Actions §23:38.

[43] Id.

[44] Swales, 985 F.3d at 438-39.

[45] Id. at 438.

[46] Id.

[47] Id.

[48] Id. at 439.

[49] Id. at 439-40.

[50] Id.

[51] Id. at 440-41.

[52] Id. at 441-42.

[53] Id. at 441.

[54] Id. at 443.

[55] Rubenstein, et al., 7 Newberg and Rubenstein on Class Actions §23:37 (6th ed.).

[56] Clark, 68 F.4th at 1008.

[57] Id. at 1009.

[58] Id.

[59] Id. at 1008.

[60] Id.

[61] Id.

[62] Id.

[63] Id.

[64] Id. at 1010 (quoting Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 174 (1989)).

[65] Id.

[66] Id. at 1009-10.

[67] Id.

[68] Id.

[69] Id. at 1010.

[70] Id. at 1010-11.

[71] Id. at 1011.

[72] See, e.g., Hipp, 252 F.3d at 1219; Mickles, 887 F.3d at 1278.

[73] See, e.g., Wright v. Waste Pro USA, Inc., No. 19-CV-62051, 2021 WL 1290299, at *2 (S.D. Fla. Apr. 6, 2021).

[74] Wright, 2021 WL 1290299 at *2; Collado v. 450 N. River Drive, LLC, No. 22-CV-23074, 2023 WL 4251018, at *2 (S.D. Fla. June 29, 2023).

[75] Green, 2022 WL 2007398 at *5.

[76] Id.

[77] Id.

[78] Id.

[79] Id. (quoting Swales, 985 F.3d at 441-42).

[80] Green, 2022 WL 2007398 at *4.

[81] Id. at *7.

[82] Broome, 2022 WL 205675 at *4.

[83] Id.

[84] Id. at *6-7.

[85] Broome v. CRST Malone, Inc., No. 19-CV-01917, 2022 WL 205675, at *7 (N.D. Ala. Jan. 21, 2022).

[86] Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 75, 133 S. Ct. 1523, 1530 (2013).

[87] See, e.g., Plummer v. Waste Pro of Fla., Inc., No. 5:22CV28-MW/MJF, 2022 WL 19403193, at *1 n.1 (N.D. Fla. Dec. 9, 2022) (noting how 107 plaintiffs filed individual FLSA suits after a collective action was decertified).

Christopher M. CascinoChristopher M. Cascino is board certified in labor and employment law. He devotes himself to helping employers faced with the risks of Fair Labor Standards Act collective action and workplace class action litigation.

Peter W. ZinoberPeter W. Zinober is a shareholder at Ogletree, Deakins, Nash, Smoak and Stewart in Tampa. He received his B.A in English and J.D. from the University of Florida, and his LL.M in Labor Law from The George Washington University. He has been a fellow in the College of Labor and Employment Lawyers since 1996, and was the first chair of the Board of Certification, Designation and Advertising. Zinober was an editor of the labor law treatise, “The Development of the Law Under the National Labor Relations Act” (BNA/ Bloomberg) for 30 years. After practicing with the U.S. Department of Labor and the National Labor Relations Board, he went into private practice representing management.

This column is submitted on behalf of the Labor and Employment Law Section, Sacha Dyson, chair, and Alicia Koepke, editor.

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