It just got a little harder for employees to convert their individual FLSA claims into massive collective actions

Jun 29, 2023

The Fair Labor Standards Act (FLSA) allows employees to litigate minimum wage and overtime claims on behalf of themselves as individuals or as a collective action with other employees who are “similarly situated.” Assuming other employees are “similarly situated,” they can only join an FLSA lawsuit if they actively choose to do so by giving their written consent.  Usually, plaintiffs come to the court themselves, not the other way around.  The fact that a court will facilitate notice to potential plaintiffs in FLSA cases, and how and to whom it does so, is therefore an important issue in those cases.

The Sixth Circuit’s recent decision in Clark v. A&L Homecare & Training Ctr., LLC pointed out the practical reality that granting FLSA notice often determines the outcome of a case by prompting an employer to settle because “the issuance of notice can easily expand the plaintiffs’ ranks a hundredfold.”  Thankfully for employers, the new standard set forth in Clark makes getting to that point more difficult for plaintiffs.

In its ruling, the Sixth Circuit held that a plaintiff must show a “strong likelihood” that those claimants are “similarly situated” to the plaintiff themselves to facilitate giving notice of an FLSA suit and certify a collective action to potential claimants. The Court stated that in order to be considered “similarly situated” for the purposes of joining an FLSA lawsuit, an employee must normally have done the same duties and been subject to the same policies, including pay and timekeeping, as the original plaintiffs.

This is a higher standard than what courts previously used in FLSA cases, which only required a modest showing or lenient standard of similarity to certify a collective action.  Adopting a higher standard for providing such notice may help level the playing field in collective actions between employees and employers. Now, for a court to facilitate notice of an FLSA suit to potential plaintiffs, the plaintiffs must first show a “strong likelihood” that those individuals are similarly situated to the plaintiffs.  This “strong likelihood” standard is good news for employers, who may not be subject to as much pressure to settle early on in an FLSA case as a result.

K|W|W attorneys will continue to monitor developments regarding this new standard and update you as they occur. At K|W|W, your workforce is our priority.

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