Court watchers following the ripple effects of groundbreaking wage and hour opinion Swales v. KLLM Transport Services, LLC, 985 F.3d 430 (5th Cir. 2021) (“Swales”) may have gained their first insight into the Supreme Court’s thought process following Chief Justice John Robert’s refusal to pause a conditional collective action certification in Maximus Inc. v. Thomas, et al., No. 22A164, currently pending in the Eastern District of Virginia and following this decision and a failed appeal from the Fourth Circuit.
As we have written about previously, Swales represented a significant departure from the long-standing two-step certification process established in Lusardi v. Xerox Corp, 118 F.R.D. 351 (N.N.J. 1987) (“Lusardi”), which is used by most courts in the country in certifying Fair Labor Standards Act (“FLSA”) collective actions.
Under the commonly applied “two-step” certification process in “opt-in” FLSA collective actions, a district court initially ascertains whether a collective action should be “conditionally certified” early in the litigation based on a modest factual showing as to whether putative class members are “similarly situated,” which often comes before discovery or following minimal, initial discovery. Because the district court typically has little information at the first step, the conditional certification standard is more lenient than typical class certification. Following conditional certification, notice will be mailed to putative plaintiffs, many of...
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