A Fair Labor Standards Act (“FLSA”) case is working its way through the Sixth Circuit and could have serious ramifications for plaintiff-side employment law practitioners in the Sixth Circuit. In this post, we discuss the potential sea change a decision in In re: A&L Home Care and Training Center, et al. could effect in the Sixth Circuit’s jurisprudence on certification of collectives in the FLSA context.
Lusardi v. Xerox Corp., 118 F.R.D. 351 (D.N.J. 1987) set out the ubiquitous two-step process for certifying collectives under FLSA: a conditional certification stage and a final certification stage. It is this standard that Defendants asked a motions panel of the Sixth Circuit to consider in deciding whether to grant interlocutory review of the District Court’s decision.
Judge McFarland, sitting in the Southern District of Ohio, had the first bite at the apple. In his thorough opinion, Judge McFarland provided a helpful explanation of how the bifurcated Lusardi process typically works. First, conditional certification “takes place at the beginning of discovery” and, in this stage, “plaintiffs need only make a modest factual showing that they are similarly situated to the proposed class of employees.” This standard is “fairly lenient and usually results in conditional certification of a representative class.” Once a conditional class is certified, plaintiffs “may send opt-in notices to current and former employees who potentially satisfy the definition of the...
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