Duane Morris Class Action Review - 2023 - Report - Page 219
CHAPTER 13
FLSA / Wage & Hour Class And Collective Actions
I.
Executive Summary
Litigation against employers alleging violations of the Fair Labor Standards Act (FLSA)
continues to be an area of focus for plaintiffs’ attorneys. More than any are of
substantive law, the plaintiffs’ bar files more wage and hour class and collective actions
against companies than any other type of complex litigation.
To conditionally certify a collective action under the FLSA, plaintiffs must provide some
evidence to support their claim that they are similarly-situated to the other potential
members of the collective action. This evidence, known as a "modest factual showing"
and universally recognized as a low threshold to meet, often takes the form of affidavits
or declarations from the plaintiffs and other employees, as well as other evidence such
as time or payroll records. If the plaintiffs can make this modest factual showing, the
court will conditionally certify the collective action, allowing the plaintiffs to send notice
to other potentially similarly-situated employees and invite them to join the collective
action by filing consent to join forms with the court.
The second stage of the collective action certification process occurs after a pool of
potential collective action members join the action. At this stage, the court conducts a
more thorough analysis of the plaintiffs' claims and the evidence they have provided to
determine whether the plaintiffs are indeed similarly-situated to the other potential
members of the collective action. This analysis typically involves a more detailed
examination of the plaintiffs' job duties, the nature of their claims, and the evidence they
have provided to support their claims. It also often involves a judgment as to whether
the case can be managed effectively on a representative basis. This analysis takes
place after the employer-defendant seeks decertification of the collective, though in
some cases plaintiffs will seek final certification independently.
This two-step process is almost universally employed by federal courts. In 2021,
however, the Fifth Circuit abandoned the two-stage certification process for FLSA cases
in its decision in Swales, et al. v. KLLM Transport Services, L.L.C., 985 F.3d 430, 436
(5th Cir. 2021). While this approach has gained little traction overall in the federal district
courts outside of the Fifth Circuit, the Sixth Circuit heard oral argument in December of
2022 in Clark, et al. v. A&L Home Care, Nos. 22-3101 & 22-3102 (6th Cir. Dec. 7,
2022), on what standard should apply to certification of a collective action under the
FLSA toward the end of this year. A decision on whether to continue applying the twostage certification process in that circuit will be forthcoming in 2023.
In 2022, the trend of the plaintiffs’ bar success in achieving conditional certification in
FLSA cases continued unabated. Overall, plaintiffs’ motions for conditional certification
were granted in a large majority of cases, continuing to demonstrate the ease with
which the plaintiffs can satisfy the low evidentiary threshold for conditional certification.
Of the 219 total motions for conditional certification filed in federal courts, the plaintiffs
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Duane Morris Class Action Review – 2023
