Wage & Hour Class and Collective Action Review — 2023 - Report - Page 18
wage & hour settlements in 2022. Early consideration of whether and how to remove a
class action to federal court or seek a change of venue remains paramount.
Given such success, corporations can expect the wage & hour area to continue to be a
hotbed of litigation, with a plaintiffs’ class action bar that will be equally if not more
aggressive in their case filings and settlement positions in 2023.
This Wage & Hour Class Action Review offers an overview of the most significant trends
and developments that shaped the wage & hour class and collective action landscape in
2022.
II.
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 area 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
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© Duane Morris LLP 2023
Wage & Hour Class And Collective Action Review – 2023
