In 2023, the plaintiffs’ bar continued its long-running success in achieving conditional certification in FLSA cases. Once again, plaintiffs’ motions for conditional certification were granted in a large majority of cases, thereby continuing to demonstrate the ease with which the plaintiffs’ bar can satisfy the low evidentiary threshold for conditional certification. Of the 167 total motions for conditional certification filed in federal courts, the plaintiffs won conditional certification 125 times, or at a rate of 75%, while 42 motions were denied. This is significant decrease when comparing the statistical totals in 2022, when the plaintiffs’ bar won 82% of first stage conditional certification motions, and 2021, when the plaintiffs’ bar secured a success rate of 84% of such motions, and also reflects for a portion of the year the Sixth Circuit ’ s stricter first-stage certification requirements. Regarding decertification motions, employers achieved approximately the same success in 2023 as they did in 2022. In 2023, 18 decertification decisions were issued, and plaintiffs prevailed in 10 cases while defendants achieved decertification in 8 decisions. The plaintiffs’ success rate of 56% is slightly higher than their 2022 success rate of 50%, as compared to 53% in 2021.
Once again, continuing a recent trend, the top jurisdictions for FLSA-related litigation, and those perceived as most plaintiff-friendly, are the Second, Ninth, and Sixth Circuits. Given the Sixth Circuit ’ s abandonment of the traditional two-step 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, a substantial decline in FLSA cases filed in that jurisdiction is an expected trend in 2024. II. Key Rulings In FLSA / Wage & Hour Class And Collective Actions In 2023 The significant decisions in 2023 can be grouped into several categories, discussed below, which include: (i) key standard-setting decisions from the Sixth Circuit Court of Appeals and the United States Supreme Court; (ii) rulings granting conditional certification, even based on minimal evidence; (iii) rulings denying or substantially limiting conditional certification based on insufficient proof; (iv) rulings denying conditional certification based on procedural or technical arguments; (v) rulings decertifying collective actions or denying Rule 23 class
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© Duane Morris LLP 2024
Wage & Hour Class And Collective Action Review – 2024
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