The Seventh Circuit has joined the Fifth and Sixth Circuits in establishing a higher bar for employees to clear before courts may authorize "notice" to potential members of an FLSA collective action.
Seyfarth Synopsis: The Seventh Circuit has joined the Fifth and Sixth Circuits in establishing a higher bar for employees to clear before courts may authorize "notice" to potential members of an FLSA collective action. Although the Seventh Circuit declined to adopt either the Swales or Clark standards, employers now will be given an opportunity to demonstrate, through their own evidence, that the proposed collective members are not sufficiently similar to one another to justify collective litigation. The new standard asks courts to consider whether, after viewing both sides' evidence, there is a "material dispute" about similarity—and even then to still exercise restraint before authorizing notice.
The FLSA allows "similarly situated" employees to collectively sue employers. In much of the country, employees can obtain court-authorization to send notice to potentially similarly situated collective members under a "lenient standard" that courts often noted involved making only a "modest showing" to clear a "low burden." This often is referred to as the Lusardi standard. But now, in the Seventh Circuit (Illinois, Indiana, and Wisconsin), plaintiffs who seek to distribute that notice will need to clear a significantly higher bar. That's because in Richards v. Eli Lilly & Co.,...
Tribune News Editor [email protected] TWO Bahamians were indicted in separate US federal districts last week on charges linked to passport fraud and false claims of American citizenship, acc...