At a Glance
- The growing divergence among the U.S. Circuit Courts of Appeal'ranging from those following the lenient "two-step" framework first endorsed in Lusardi to the more rigorous evidentiary thresholds articulated by the Fifth, Sixth, and Seventh Circuits'has created substantial uncertainty for employers and employees navigating collective action litigation.
- Four different approaches for determining whether a named plaintiff in a collective action is "similarly situated" to the employees they seek to represent now exist across seven different circuits.
- The defendant-petitioner's intent to appeal the Ninth Circuit's ruling in Harrington v. Cracker Barrel based on this conflict represents a rare opportunity for the U.S. Supreme Court to opine on the appropriate standard.
The Fair Labor Standards Act (FLSA) provides a framework for how employees are compensated under federal law. In addition to establishing minimum wage and overtime standards, among other things, the FLSA allows employees to bring "collective" actions "for and on behalf of themselves and other employees similarly situated." 29 U.S.C. 216(b). Notably, Section 216(b) applies to claims under the FLSA, the Age Discrimination in Employment Act (ADEA), and the Equal Pay Act. Despite this provision being law for more than 75 years, federal courts have largely been left to their own devices to develop and apply an appropriate framework to determine when a court may authorize notice in a Section 216(b) collective action to "similarly situated" employees, who must give written consent if they wish to "opt in" to the collective action.
As a result, several divergent standards for evaluating motions seeking authorization to send notice have emerged. Indeed, no fewer than four different frameworks have been endorsed by U.S. Circuit Courts of Appeal. However, the recent Ninth Circuit decision in Harrington v. Cracker Barrel may finally provide the vehicle for the U.S. Supreme Court to resolve this multi-circuit split and provide clear guidance on the correct framework to be applied. Notably, after the Ninth Circuit's July 1, 2025, decision declining to adopt the more rigorous standard for notice articulated by the Fifth Circuit, and its subsequent refusal to rehear the matter en banc, Cracker Barrel filed a motion asking the Ninth Circuit to stay its mandate while it sought review by the U.S. Supreme Court. The Ninth Circuit granted Cracker Barrel's stay request on August 19, 2025.
Given the considerable split among the circuits, there is a real possibility that the U.S. Supreme Court will take up the decision and finally do what the FLSA itself fails to do - articulate the standard to be applied to a request to authorize notice in a collective action under Section 216(b) and provide important guidance to the district courts and the parties in the thousands of putative collective actions filed each year.
The Long Accepted "Two-Step" Approach for "Conditional Certification"
When analyzing whether the named plaintiff in a putative collective action may send court-authorized notice of the action to other employees, district courts must evaluate whether there are other alleged "similarly situated" employees subject to a common policy or plan that violates the FLSA. Lacking guidance from the FLSA or the U.S. Supreme Court, many district courts have followed an approach first articulated nearly 40 years ago by the U.S. District Court for the District of New Jersey in Lusardi v. Xerox Corp., 118 F.R.D. 351 (D.N.J. 1987). Under the so-called Lusardi "two step" approach, a court analyzes the plaintiff's allegations and evidentiary submission to determine whether the proposed named plaintiff and members of the proposed collective are "similarly situated" such that a collective should be "conditionally certified" and notice issued. Many district courts described the first step in this two-step framework as having a "low" or "lenient" standard - one that could, in certain cases, be satisfied merely by the plaintiff's reference to the four corners of his complaint and a self-serving affidavit or declaration. To make matters worse for employers, some district...
