certification; (vi) rulings denying decertification or granting Rule 23 class certification; and (vii) rulings adjudicating class and/or collective actions on the merits. 1. Standard-Setting Decisions By The Sixth Circuit And The U.S. Supreme Court Two decisions rendered in 2023 have the potential to substantially impact the outcome of FLSA cases in the coming years. In perhaps the most critical FLSA-related decision in 2023, the Sixth Circuit jettisoned the conventional two-step process for conditionally certifying a FLSA collective action in Clark, et al. v. A&L Homecare & Training Center, LLC , 68 F.4th 1003 (6th Cir. 2023). The named plaintiffs brought a putative collective action under the FLSA against their former employer and its owners, challenging pay practices they alleged ran afoul of the FLSA ’ s overtime and minimum wage requirements. The named plaintiffs filed a motion with the district court seeking conditional certification of three collective actions of employees alleged to have been subject to the same pay practices. In 2021, the district court granted plaintiffs’ motion as to two of the three proposed collective actions in Holder, et al. v. A&L Home Care & Training Ctr., LLC , 552 F. Supp. 3d 731, 740 (S.D. Ohio 2021). In conditionally certifying two collective actions, the district court applied the oft-used two-step framework set forth in Lusardi v. Xerox Corp., 118 F.R.D. 351 (D.N.J. 1987). Under the Lusardi framework, the named plaintiffs need only present what courts have described as a “modest factual showing” that similar potential plaintiffs exist to satisfy the first step, i.e. , certification of a collective action on a conditional basis. In the second step, assuming others have joined the lawsuit as opt- in plaintiffs and the parties have completed discovery on the merits, the district court makes a final determination whether the opt-in plaintiffs actually qualify as parties to the litigation on the basis of substantial similarity to the named plaintiffs in what is known as a second-stage final certification order. The district court acknowledged that the Fifth Circuit in Swales, et al. v. KLLM Transport Services, L.L.C ., 985 F.3d 430, 443 (5th Cir. 2021), had rejected the Lusardi approach in favor of “rigorous” enforcement of the similarity requirement in a single step, after a period of preliminary discovery. The Sixth Circuit declined to follow suit. Recognizing the district courts’ need for guidance on the standard for sanctioning notice to putative opt-in plaintiffs in FLSA cases, the district court certified its decision for immediate interlocutory review by the Sixth Circuit under 28 U.S.C. § 1292(b). The Sixth Circuit accepted the appeal in order to address, for the first time, the legal issue of what a plaintiff needs to show in order to convince a court to allow notice to others of their ability to join the plaintiff ’ s FLSA lawsuit. The Sixth Circuit rejected both the Lusardi approach and the Swales approach. The majority opinion suggested that the new standard involves two steps. The Sixth Circuit analogized the showing of similarity required under the new standard to what a movant must show to secure a preliminary injunction, i.e., that, to a certain degree of probability, the movant will prevail on the underlying issue when the court makes its final decision whether to enjoin or not. The Sixth Circuit focused on the first step, which requires a named plaintiff to show it is strongly likely that members of the putative collective action are “in fact similarly-situated” to the named plaintiff, without stating the contours of the second step. Id. at *11. This standard, according to the majority, will “confine the issuance of court-approved notice, to the extent practicable, to employees who are in fact similarly-situated; and it would strike the same balance that courts have long struck in analogous circumstances.” Id. at *13. Given that the statute of limitations period continues to run during pre-trial discovery in order to determine whether potential opt-in plaintiffs should get notice of the lawsuit, the opinion cautioned district courts to “expedite” ruling on motions for such notice in FLSA cases in light of the general two-year statute of limitations period for FLSA claims. See Id. ; 29 U.S.C. § 255(a). Importantly, as to what district courts should consider in applying the new standard, Sixth Circuit agreed that district courts should consider the impact of the different defenses to which potential members of the collective action may be subject in making the notice determination. Id. at *15-*16. For example, whether some potential plaintiffs signed arbitration agreements and whether the statute of limitations would bar some potential plaintiffs’ claims are fair game in a district court ’ s decision whether to allow notice.
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Wage & Hour Class And Collective Action Review – 2024
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