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    June 07, 2024

    One-Step FLSA Certification: New Trend or Anomaly?

    Sarah J. Arendt

    In the last few years, the Fifth and Sixth Circuit Courts of Appeals have rejected the traditional FLSA conditional certification process and adopted their own standards for issuing notice to similarly situated employees. After these decisions, talk of “one-step certification” proliferated. But how much has really changed?

    A Long and Lenient Two-Step Tradition

    Since the United States Supreme Court in Hoffman-La Roche Inc. v. Sperling, 493 U.S. 165, 169 (1989), ruled that district courts have the authority to facilitate notice of FLSA lawsuits to potential plaintiffs, most district courts have adopted a two-step approach to FLSA collective action litigation. This common approach is often referred to as the “Lusardi standard.” At the first stage, known as “step one” or “conditional certification,” the plaintiff must make a “modest factual showing” that he or she is similarly situated to other employees to whom court-authorized notice should issue. Courts often characterize the required showing at step one as “fairly lenient.” If the motion for step one notice or conditional certification is granted, the court-approved notice is issued to potential opt-in plaintiffs, giving them the opportunity to file a written consent with the court. 29 U.S.C. 216(b).

    After putative opt-in plaintiffs have filed consents and joined the action, the parties conduct discovery to determine whether those who opted in are, in fact, similarly situated to the named plaintiffs.

    At step two, which is usually prompted by a motion from the employer to decertify the collective, the court performs a more stringent analysis based on the full record developed during discovery, applying a “substantial evidence” or “preponderance of the evidence” evidentiary standard.

    From Two Steps to One

    The relatively homogenous adoption of the two-step Lusardi standard changed in early 2021, when the Fifth Circuit Court of  Appeals decided Swales v. KLLM Transport Services, L.L.C., 985 F.3d 430 (5th Cir. 2021). In Swales, the Fifth Circuit jettisoned the two-step analysis, noting that the term “conditional certification” appears nowhere in the FLSA. Id. at 434. Instead of a two-step approach, the Fifth Circuit ruled that district courts must “rigorously scrutinize” the alleged similarly situated workers from the outset of the case and may only issue notice of the litigation to employees who are actually similarly situated to the named plaintiffs. Id. To accomplish this, the Fifth Circuit instructed district courts to identify, at the outset of a case, the facts and legal considerations that will be material to determining whether a group of employees is similarly situated and then to authorize preliminary discovery into such issues. Id. at 441. Then, after considering all the available evidence obtained through discovery, the district court must determine whether the potential opt-ins and the named plaintiffs are in fact similarly situated. Id. at 443.

    Two years later, in Clark v. A&L Homecare and Training Center, LLC, 68 F.4th 1003 (6th Cir. 2023), the Sixth Circuit likewise rejected the Lusardi standard, albeit while also rejecting the Swales analysis. Like the Fifth Circuit, the Sixth Circuit in Clark denounced use of the term “conditional certification,” making it clear that the issuance of notice does not change the character of the underlying suit or “conditionally certify” anything. In rejecting Swales, however, the Sixth Circuit held that a district court cannot make a “similarly situated” determination as to employees who are not present in the case, and therefore notice must be issued to potentially similarly situated employees before a district court can determine who is actually similarly situated. Clark, 68 F.4th at 1010. 

    The Sixth Circuit analogized the decision to issue notice in a collective action to a preliminary injunction, noting that both decisions are provisional and share the requirement that the movant demonstrate a certain degree of probability that he or she will prevail on the underlying issue when the court renders its final decision. Adopting part of the preliminary injunction standard, the Sixth Circuit held that, for a district court to facilitate notice of a FLSA action to other employees, the plaintiff must show a “strong likelihood” that those employees are similarly situated to the plaintiff. Id.  at 1011. The appellate court described this standard as requiring more than a genuine issue of fact, but less than preponderance of the evidence. Id.

    Thus, while the Fifth Circuit in Swales collapsed the two-step inquiry into a single determination of similarly situated status made before notice is issued, the Sixth Circuit in Clark held that a conclusive determination of similarly situated status can only be made after notice has been issued and discovery conducted. This echoes the Lusardi standard, and a close reading of Clark suggests that its practical effect on district courts in the Sixth Circuit will do little to alter the status quo. District courts in the Sixth Circuit must still make a preliminary determination whether other employees are likely to be similarly situated to the named plaintiff before issuing notice.

    And they must still make a conclusive determination on similarly situated status after notice has been issued. In that sense, Clark does not abandon the twostep analysis, but instead alters the evidentiary burden plaintiffs must meet at step one. The practical effects of that alteration, and the difference between a “modest factual showing” and a “strong likelihood,” remain to be seen.

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    Sarah J. Arendt

    Werman Salas P.C.

    Sarah J. Arendt is a partner at Werman Salas P.C. in Chicago, Illinois. She has represented employees all over the country in class and collective actions to recover unpaid minimum wages, overtime compensation, and other penalties. While Sarah’s practice is primarily focused on wage and hour litigation, she also represents plaintiffs in employment discrimination matters as well as employees who have had their rights violated under the Illinois Biometric Information Privacy Act.