January 27, 2021

Volume XI, Number 27

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Fifth Circuit Rejects Two-Step FLSA Collective Action Certification Process

On January 12, 2012, the United States Court of Appeals for the Fifth Circuit announced a new certification standard for collective actions under the Fair Labor Standards Act (FLSA).  The appellate court vacated a grant of conditional certification, ruling that at the outset of the case district courts “must rigorously scrutinize” whether potential opt-in plaintiffs are similarly situated.  This standard requires the court identify the material facts and legal considerations needed to decide whether employees are similarly situated and authorize limited discovery on these issues before deciding conditional certification and authorizing class notice.

The Fifth Circuit’s decision explicitly rejects the widely-used two-step FLSA certification process consisting of “conditional certification”—where plaintiffs must, in essence, allege only that potential plaintiffs are subject to an unlawful common policy or practice, with the court revisiting the certification after discovery to make a final decision as to whether plaintiffs and opt-ins are similarly situated. 

While this ruling is presently binding on district courts in the Fifth Circuit, time will tell if other circuits will adopt this heightened standard and whether the United States Supreme Court will weigh-in on the issue.  

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© Polsinelli PC, Polsinelli LLP in CaliforniaNational Law Review, Volume XI, Number 13
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About this Author

Jason Plowman, Polsinelli Law Firm, Kansas City, Labor and Employment Litigation Law Attorney
Counsel

Jason N.W. Plowman’s practice focuses on all facets of employment litigation, including harassment, discrimination, retaliation, and wage and hour matters.  He regularly represents employers before administrative agencies as well as state and federal courts across the country.  Jason also regularly partners with clients to deliver practical solutions regarding federal, state, and local employment laws and regulations.  His experience extends across multiple industries, including:

  • Telecommunications

  • ...

816-360-4192
Meghan Hanson Polsinelli Employment Attorney
Associate

Meghan Hanson focuses on her practice on a wide variety of employment-related matters. She is committed to understanding the industry in which clients operate and provides valuable counsel to employers as they face sensitive workplace matters. Her experience includes conducting discovery research and drafting memoranda related to employment cases, summary judgement and bankruptcy and physician liability.

Working with seasoned Polsinelli attorneys, Meghan helps employers mitigate risk and prevent or resolve employee issues before they escalate into legal disputes, including by...

816.360.4304
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