On January 12, 2026, the U.S. Supreme Court declined to address a deepening circuit split about the process for certifying collective class actions under the Age Discrimination in Employment Act (“ADEA”) and the Fair Labor Standards Act (“FLSA”). As a result, uncertainty persists for employers and employees alike, with federal courts adopting a range of standards.

Historical Class Certification Standard

Both Rule 23 class actions and FLSA section 216(b) collective actions allow employees to bring suit on behalf of others who are “similarly situated.” Section 216(b) mandates employee-plaintiffs opt-in to the lawsuit, which requires courts to approve and oversee the circulation of class notice to potential plaintiffs. The same process applies to ADEA class actions. In Hoffman-La Roche, Inc. v. Sperling (1989), the U.S. Supreme Court authorized the sending of notice of a FLSA collective action to potential opt-in plaintiffs so long as that notice is neutral, timely and accurate. Following the Supreme Court’s holding in Hoffman-La Roche, most federal courts adopted a plaintiff-friendly, two-step analysis articulated in Lusardi v. Xerox Corp. Under the Lusardi approach, plaintiffs who demonstrate that employees are “similarly situated” based on a “modest factual showing” achieve conditional certification.

Conditional certification permits district courts to oversee the circulation of notice to potential class action members. Courts then consider final certification or...

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