indeed similarly-situated to the other members of the conditionally certified 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 action, although in some cases plaintiffs will seek final certification independently. This two-step process was, until recent years, almost universally employed by federal courts, and continues to be the approach used in most federal courts today. Recently, however, two decisions in the Fifth and Sixth Circuits have revamped the FLSA certification procedure and increased the burden plaintiffs must meet before certification occurs in those jurisdictions. The Fifth Circuit, in 2021, 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). In 2023, the Sixth Circuit joined the Fifth Circuit in jettisoning the traditional two-stage certification approach for certifying a FLSA collective action in its decision of Clark, et al. v. A&L Homecare & Training Center, LLC , 68 F.4th 1003 (6th Cir. 2023). However, the Sixth Circuit expressly declined to adopt the standard utilized by the Fifth Circuit, and instead instituted an entirely new, stricter certification analysis. As a result, there are now three different standards utilized to certify FLSA collective actions throughout the federal court system, increasing the possibility that the U.S. Supreme Court will eventually weigh in on the issue. In 2024, 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 157 total motions for conditional certification filed in federal courts, the plaintiffs won conditional certification 125 times, or at a rate of 80% while 32 motions were denied. This is slight increase when compared against the statistical totals in 2023, when the plaintiffs’ bar won 75% of first stage conditional certification motions, but a decrease from the 2022 and 2021 numbers, when the plaintiffs’ bar secured a success rate of 82% and 84% of such motions respectively.
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© Duane Morris LLP 2025
Wage & Hour Class And Collective Action Review – 2025
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