On May 19, 2023, the United States Court of Appeals for the Sixth Circuit became the second federal appeals court to heighten the standard for plaintiffs to obtain court-authorized notice to potential plaintiffs in Fair Labor Standards Act (“FLSA”) collective action lawsuits.

Similar to the Fifth Circuit’s January 2021 decision in Swales v. KLLM Transport Services LLC (previously reported here), the Sixth Circuit’s decision plainly rejects the widely-used FLSA certification process adopted in Lusardi v. Xerox Corp., where in order to receive “conditional certification” plaintiffs are only required to make a modest factual showing that other employees are subject to an unlawful common policy or practice to receive court-authorized notice before the court engages in an analysis of whether those employees are “similarly situated” to the plaintiff.

In its decision, the Sixth Circuit did not track the Fifth Circuit’s standard, which requires district courts to “rigorously scrutinize” whether potential opt-in plaintiffs are similarly situated at the outset of the case. Instead, the Sixth Circuit held in Brooke Clark v. A&L Homecare and Training Center, LLC that a plaintiff must demonstrate a “strong likelihood” that members of the notice group are similarly situated to the plaintiff before a district court can authorize notice of the lawsuit to other potential plaintiffs. The Sixth Circuit further stated that the “strong likelihood” standard requires a showing greater than necessary to create a genuine issue of fact, but less than by a preponderance of the evidence.

After these noteworthy decisions in the Fifth and Sixth Circuits, time will tell if other circuits will adopt heightened notice standards for plaintiffs in FLSA collective actions and whether the United States Supreme Court will tackle the issue.