February 28, 2019 Article

Bifurcated Discovery in Fair Labor Standards Act Collective Actions

When both sides to an FLSA collective action go into conditional certification knowing what the class should be, it can save everyone a lot of time, effort, and expense.

By Michael W. Rich

The Fair Labor Standards Act (FLSA) of 1938 can be a procedural nightmare. Coupled with the broad discovery envisioned by Federal Rule of Civil Procedure 26(b), FLSA lawsuits can quickly turn expensive. Courts often grant plaintiff motions for conditional certification of a collective action class on thin evidence, and this can lead to inefficiency for both sides. These inefficiencies include increasing the burden of discovery, distorting case value estimations, and diverting resources from viable claims. One method to fashion better collective action classes is with bifurcated discovery.

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