Wage & Hour Class And Collective Action Review – 2025

the district court.” Id. at 1216. Since Swales was decided, including in 2024, district courts within the Eleventh Circuit have increasingly used their discretion to adopt the Swales certification analysis when confronted with a request for §216(b) certification. See , e.g. , Johnson, et al. v. Level 3 Communications, LLC, 2024 WL 3497847, at *7 (S.D. Fla. June 14, 2024) (adopting the Swales approach to FLSA certification). Courts within the Seventh Circuit similarly may be showing that it is moving away from the traditional Lusardi approach to conditional certification. In August 2024, the court in Laverenz, et al. v. Pioneer Metal Finishing, LLC, 2024 WL 3887110 (E.D. Wis. Aug. 21, 2024) , joined the fray and rejected the two-step approach to conditional certification as inconsistent with the text of the FLSA, choosing to adopt the Swales approach instead. Id. at *6. In another decision from within the Seventh Circuit entitled Esque, et al. v. DWD Co., LLC , 2024 WL 3566217 (S.D. Ind. July 29, 2024), the court expressly stated that it is “not using the two-step approach” in denying a motion for conditional certification, citing Swales approvingly, though it did not expressly adopt the Swales framework. Id. at *6-*7. Other jurisdictions steadfastly refused to embrace either Swales or Clark in 2024. The Fourth Circuit’s movement towards the Swales standard in 2023, for example, appears to have been short lived. Though the Fourth Circuit never formally adopted the Lusardi approach, district courts within the Fourth Circuit have long done so. One district court within the Fourth Circuit, in 2023, chose to apply the Swales framework to FLSA collective action certification. See Mathews, et al. v. USA Today Sports Media Group, LLC , 2023 WL 3676795, at *3 (E.D. Va. Apr. 14, 2023). In 2024, however, district courts within the Fourth Circuit uniformly declined to do so, describing Matthews as an “outlier” and applying the traditional two-step certification process. See , e.g. , Firestone, et al. v. Food Concepts, LLC , 2024 WL 578454 (D.S.C. Feb. 13, 2024) (rejecting Mathews as an “outlier”); Kneppar, et al. v. Elevance Health Companies, Inc. , 2024 WL 1156406, at *3 (D. Md. Mar. 18, 2024) (declining to depart from the two-step approach and adopting the Swales approach); Andrews, et al. v. Bojangles Opco, LLC , 2024 WL 4154825, at *3 (W.D.N.C. Sept. 11, 2024) (declining to “deviate from twenty years of established precedent” and employing two-stage approach to collective action certification) In 2024, at least fifteen federal district courts throughout the nation expressly declined to adopt the Swales or Clark approach to conditional collective action certification despite defendants’ pleas to do so, indicating courts’ reluctance to depart from their long-standing approach. See Johnson, et al. v. PHP of NC, Inc ., 2024 WL 2290590, at *5 (E.D.N.C. May 21, 2024) (rejecting Swales approach); Tay, et al. v. New York & Presbyterian Hospital , 2024 WL 4286226, at *5 (S.D.N.Y. Sept. 24, 2024) (declining to adopt the Swales or Clark framework); Norman, et al. v. Encompass Health Rehabilitation , 2024 WL 3568605, at *4 (E.D. Va. July 12, 2024) (refusing to adopt Swales or Clark ); Phillips, et al. v. Oaklawn Jockey Club, Inc ., 2024 WL 69959, at *2 (W.D. Ark. Jan. 5, 2024) (declining to adopt Swales ); Kiani, et al. v. Automatic Data Processing Inc ., 2024 WL 2831628, at *3 (D. Ariz. June 4, 2024) (rejecting Clark and Swales ); Rivera, et al. v. CHSPSC, LLC , , 2024 WL 3509701, at *3 (D.N.M. July 23, 2024) (same); West, et al. v. LaserShip, Inc ., 2024 WL 1461403, at *6 (S.D.N.Y. Apr. 4, 2024) (same); Lopez, et al. v. St. Luke’s Roosevelt Hospital Center , 2024 WL 836480, at *7 (S.D.N.Y. Feb. 28, 2024) (declining to adopt Swales ); Burrell, et al. v. Lackawanna Recycling Center, Inc ., 2024 WL 2055003, at *5 (M.D. Pa. May 6, 2024) (rejecting Swales ); Marcy, et al. v. Select Medical Corp ., 2023 WL 9074622, at *2 (M.D. Pa. Nov. 1, 2023) (rejecting Clark and Swales ); Kirkpatrick, et al. v. Greenix Holdings, LLC , 2024 WL 757158, at *3 (D. Utah Feb. 23, 2024) (rejecting Clark and Swales ); O’Brien, et al. v. Smoothstack, Inc ., 2024 WL 1356674, at *6 (E.D. Va. Mar. 28, 2024) (declining to adopt Swales ); Van Note, et al. v. International Flavors & Fragrances Inc. , 2024 WL 1994314, at *3 (C.D. Ill. May 2, 2024) (rejecting Clark and Swales ). 2. Rulings Granting Conditional Certification Motions, Even With Minimal Supporting Evidence Considering the minimal evidence required in most jurisdictions, it is not surprising that the bulk of motions seeking conditional certification in 2024 were granted, continuing a long-standing trend in the federal courts. The exact evidentiary burden required in these instances can differ significantly, which is often influenced by the case’s specific legal stage and/or facts. Typically, plaintiffs’ lawyers rely on declarations from one or more individuals who use their personal experiences to demonstrate the requisite facts and circumstances that show the plaintiff and potential collective action members are similarly-situated. However, due to the more stringent criteria for certification of a FLSA collective action set by the Fifth Circuit in 2021 and the Sixth Circuit in 2023,

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