Wage & Hour Class And Collective Action Review – 2025

the nation. Id. at *2. The plaintiff, a former grower for Perdue, filed a lawsuit seeking relief under the FLSA. He claimed that growers were entitled to at least the federal minimum wage and overtime pay, which Perdue did not pay them. Id. at *3. Specifically, the plaintiff alleged that he often worked over 60 hours per week, was expected to be on call 24 hours a day, and, after paying for expenses, he was making a fraction of the federal minimum wage. Id. at *2. The plaintiff claimed that he and other growers nationwide were misclassified as independent contractors when they were in fact employees. Id. at *3. The parties engaged in six months of targeted discovery on conditional certification issues, including extensive written discovery, a Rule 30(b)(6) deposition, and the depositions of the named plaintiff and the sole opt-in plaintiff to the action. Id. The plaintiffs sought to conditionally certify a proposed collective action that included at least 1,300 growers who raised chickens for Perdue under a Perdue Poultry Producer Agreement in the past three years. Id. at *5. The plaintiffs also sought the court’s approval for a proposed notice to be sent to potential collective action members who met this definition, as well as Perdue’s disclosure of a list of individuals in the potential collective action so that notice could be sent. Id. at *6. Perdue objected to conditional certification because, among other things, the plaintiffs failed to provide sufficient evidence to show that other growers in the nationwide collective action wished to opt- in. Id. The plaintiffs argued that the opt-in consent filed by the only opt-in plaintiff indicated that other growers desired to join the suit and would join if given notice, and that one or two opt-in plaintiffs are sufficient to permit conditional certification in the Eleventh Circuit. Id. The court agreed with Purdue and rejected the plaintiffs’ position. The court found that the plaintiffs failed to meet their burden of showing that there were a substantial number of growers who desired to opt-in to the collective action. Id. at *14. Accordingly, the court denied the plaintiffs’ motion for conditional certification and dismissed the opt-in plaintiff from the suit without prejudice. Id. The court addressed the merits of Perdue’s objection under the first prong of the analysis of Dybach v. Florida Department of Corrections , 942 F.2d 1562, 1567 (11th Cir. 1991). Dybach held that Plaintiffs bear the burden of showing that the individuals in the proposed collective action (1) “desire to opt-in” to the collective action and (2) are “similarly-situated.” Because the court found the plaintiffs failed to meet their burden on the first prong, it did not reach the issue of whether members of the proposed collective action were similarly-situated. Id. at *6-7. Importantly, the court applied a somewhat heightened standard of scrutiny in this case because the parties had already engaged in six months of discovery focused on conditional certification. Id. at *7. The court explained that although it typically applies a fairly-lenient standard for conditional certification, the rationale for that standard disappears once a plaintiff has had an opportunity to conduct discovery. Id. In other words, the standard may become less lenient as the litigation progresses. Id. The court also highlighted that despite the plaintiffs having six months to conduct discovery and gather evidence for conditional certification, the only evidence they presented suggesting that other growers desired to opt-in to the case was (i) a single opt-in and (ii) self-interested statements from the named plaintiff and the opt-in that they believe other growers would be interested in joining the lawsuit. Id. at *10. Specifically, the court noted that “one opt-in is insufficient to show substantial interest” in a proposed collective action “of over 1,300 individuals in 11 locations in nine states across the country, even under the most lenient of standards.” Id. In addition to being unpersuaded by the plaintiffs’ position, which aimed to establish a bright line rule regarding the number of opt-ins sufficient to satisfy the plaintiff’s burden, the court found that the declarations filed by the named plaintiff and the opt-in (stating that they believed that other growers would be interested in joining the collective action) were speculative and thus insufficient. Id. at *11-12. Furthermore, the court noted that in their depositions, both the plaintiff and the opt-in conceded that they were not aware of any growers who wish to join the action. Id. at *12. Accordingly, the court denied the plaintiffs’ motion for conditional certification of a collective action. Plaintiffs’ theory of liability articulated in their complaint must be consistent with their motions for class and collective action certification, and any attempts to introduce new theories of liability or introduce inconsistent evidence may result in a denial of certification, as illustrated by the decision in Nqadolo, et al. v. Care At Home, LLC, 2024 U.S. Dist. LEXIS 56012 (D. Conn. Mar. 28, 2024). There, the plaintiffs, a group of home care assistants, filed a collective action alleging that the defendant violated the FLSA and the Connecticut Minimum Wage Act (CMWA) by failing to pay overtime compensation and failing to provide uninterrupted meal and sleep breaks during their shifts. The plaintiffs filed a motion for conditional certification for the FLSA collective action and for class certification for their state law claims. The court denied the motions. For the FLSA collective action, the court found that the plaintiffs did not provide enough evidence to show that they were similarly-situated to others who might join the lawsuit. The court also denied class certification for the state law claims under Rule 23, stating that the plaintiffs had not sufficiently pled the issues they sought to certify as a class. For the Rule 23 class certification motion under the CMWA, the court found the proposed class description and the issues for certification did not match what was alleged in the amended complaint. The court stated that a class action

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