Wage & Hour Class and Collective Action Review — 2023 - Report - Page 19
FLSA. A decision on whether to continue applying the two-stage certification process in
that circuit will be forthcoming in 2023.
In 2022, the trend of the plaintiffs’ bar’s 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
won conditional certification 180 times, or at a rate of 82%, while 39 motions were
denied. This compares favorably to the statistical totals in 2021, when the plaintiffs’ bar
won 84% of first stage conditional certification motions, and 2020, when the plaintiffs’
bar secured a success rate of 81% of such motions.
Regarding decertification motions, employers achieved approximately the same
success in 2022 as they did in 2021. In 2022, 18 decertification decisions were issued,
and plaintiffs prevailed in 9 cases while defendants achieved decertification in 9
decisions. Plaintiffs’ success rate of 50% is on par with their 2021 success rate of 53%,
as compared to 58% in 2020.
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© Duane Morris LLP 2023
Wage & Hour Class And Collective Action Review – 2023
