In a decision of considerable significance in the world of wage and hour litigation, the United States Court of Appeals for the Fifth Circuit significantly departed from conventional standards for assessing conditional certification under Section 216(b) of the Fair Labor Standards Act (“FLSA”). In Swales v. KLLM Transport Services, Inc., the Fifth Circuit rejected the conditional certification process entirely and drastically altered the procedure for assessing whether potential members of a collective action under the FLSA are “similarly situated.”
BackgroundPlaintiffs, a group of truck drivers who drove for defendant KLLM Transport Services, brought a FLSA collective action alleging they were misclassified as independent contractors. Upon the Plaintiffs’ motion for conditional certification, the district court applied the generally accepted two-step Lusardi test for certifying a collective and granted the motion.
Section 216(b) of the FLSA provides that employees may proceed as a collective action when they are “similarly situated,” but does not further define this term. As such, courts have adopted the “conditional certification” process as a method for determining whether plaintiffs and other employees are sufficiently similarly situated. After a court grants conditional certification, written notice may be sent to other employees, who can then join the lawsuit by “opting in” to the collective. Most federal courts have adopted this approach, which derives from a 1987 New Jersey district court opinion, Lusardi v. Xerox Corporation.
Under step one of the Lusardi test, the district court decides if proposed members of a collective are similar enough to receive notice of the pending action. This determination is usually based on the pleadings and affidavits of the parties, and often requires no more than allegations that the collective members were victims of a single decision, policy, or plan. The standard for this first stage of conditional certification is minimal and often perfunctory. See, e.g., In re JPMorgan Chase & Co., 916 F.3d 494, 501 (5th Cir. 2019) (the standard for satisfying step one is “fairly lenient” and based on “minimal evidence”). In rare cases, aggressive defendants are sometimes able to overcome this low standard, but many courts rubber stamp first-step conditional certification motions. See, e.g., Dimery v. Univ. Prot. Serv., LLC, Case No. 6:15-cv-2064 (Mar. 24, 2016) (rejecting conditional certification under FLSA); Kraft v....
