Wage & Hour Class and Collective Action Review — 2023 - Report - Page 20
The top jurisdictions for FLSA-related litigation, and those perceived as most plaintifffriendly, are the Second, Ninth, and Sixth Circuits. While the Sixth Circuit has seen
consistent increases in recent years, it may join the Fifth Circuit in abandoning the twostep certification process, which allows the plaintiffs’ bar to conditionally certify a
collective action with ease and exert substantial settlement leverage with minimal work
and expense. Should the Sixth Circuit do so, it would likely lead to a precipitous decline
in FLSA cases filed in that jurisdiction.
III.
Key Rulings In FLSA / Wage & Hour Class And Collective
Actions In 2022
The significant decisions in 2022 can be grouped into several categories, discussed
below, which include: (i) rulings granting conditional certification, even based on minimal
evidence; (ii) rulings denying or substantially limiting conditional certification based on
insufficient proof; (iii) rulings denying conditional certification based procedural
arguments; (iv) rulings decertifying collective actions; and (v) rulings denying
decertification.
A.
Rulings Granting Conditional Certification Motions, Even Based On
Minimal Evidence
Given the low evidentiary threshold, it is unsurprising that the majority of conditional
certification motions were granted in 2022. The evidentiary burden in those cases can
vary significantly depending on the procedural posture of the case. Most commonly, the
plaintiffs’ bar uses declarations from one or more individuals to establish through
personal knowledge the requisite showing that workers are “similarly-situated” for
purposes of 29 U.S.C. § 216(b).
Campo, et al. v. Granite Services International, 584 F. Supp. 3d 1337 (S.D.N.Y. 2022),
is a typical wage and hour FLSA lawsuit demonstrating how the plaintiffs’ bar uses basic
declarations to support conditional certification. The plaintiff filed a putative collective
action alleging that he and others that worked for the defendants as Environment,
Health, and Safety (EHS) Advisors were paid at the same hourly rate for all hours
worked, including straight time for overtime hours. The plaintiff filed a motion to
conditionally certify his FLSA claim as a collective action as to all employees working for
the defendants nationwide who were paid straight time for overtime, excluding Texas
EHS Advisors that were subject to a different lawsuit. In support of the motion, the
plaintiff and three other employees submitted declarations alleging they were paid
straight time for overtime and had personal knowledge of others being paid similarly. Id.
at 1343. The court rejected the defendants’ arguments that the proposed collective
action concerned at least four different job positions subject to four different pay plans,
relying on the plaintiff’s concession that he only sought to represent employees under a
single pay plan, holding uniformity of pay practice is sufficient to render the proposed
members of the collective action similarly-situated at the conditional certification stage.
Id. at 1347. The court also refused to apply a heightened standard in its similarlysituated analysis in light of the substantial discovery that plaintiff’s counsel received in
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© Duane Morris LLP 2023
Wage & Hour Class And Collective Action Review – 2023
