{"id":10166,"date":"2026-04-05T20:20:39","date_gmt":"2026-04-05T20:20:39","guid":{"rendered":"https:\/\/usatrustedlawyers.com\/blog\/divide-emerges-between-circuit-courts-of-appeal-regarding-the-standard-for-issuing-notice-to-potential-plaintiffs-in-flsa-collective-actions\/"},"modified":"2026-04-05T20:20:39","modified_gmt":"2026-04-05T20:20:39","slug":"divide-emerges-between-circuit-courts-of-appeal-regarding-the-standard-for-issuing-notice-to-potential-plaintiffs-in-flsa-collective-actions","status":"publish","type":"post","link":"https:\/\/usatrustedlawyers.com\/blog\/divide-emerges-between-circuit-courts-of-appeal-regarding-the-standard-for-issuing-notice-to-potential-plaintiffs-in-flsa-collective-actions\/","title":{"rendered":"Divide Emerges Between Circuit Courts of Appeal Regarding the Standard for Issuing Notice to \u201cPotential Plaintiffs\u201d in FLSA Collective Actions"},"content":{"rendered":"\n
\n

Summary<\/h3>\n

The Fair Labor Standards Act of 1938 (\u201cFLSA\u201d) includes a collective-action mechanism that allows courts to direct that notice be sent to individuals who are \u201csimilarly situated\u201d to the named plaintiffs concerning their rights to opt in to the suit. District courts have for many years exercised this authority through a \u201clenient\u201d two-step process that sets a low bar for named plaintiffs to establish whether prospective recipients of the notice are \u201csimilarly situated.\u201d Recently, both the Fifth Circuit and the Sixth Circuit have departed from this approach in favor of a more stringent standard. In light of this division among the courts of appeal, the Supreme Court may be asked to resolve this newly created divide and clarify a uniform standard for notice in FLSA collective actions.<\/p>\n

Background<\/h3>\n

The FLSA articulates certain protections for employees, including minimum wage requirements and overtime pay. Section\u00a0216(b) of the statute includes a collective-action mechanism that allows plaintiffs to bring claims on behalf of \u201csimilarly situated\u201d individuals. The statute does not define what it means for individuals to be \u201csimilarly situated.\u201d<\/p>\n

In contrast to the opt-out structure of class action damages suits under Federal Rule of Civil Procedure\u00a023(b)(3), FLSA collective actions have an opt-in requirement for \u201cpotential plaintiffs.\u201d For years, most courts have applied the two-step process established in Lusardi<\/em>\u00a0v. Xerox Corp.<\/em>, 118 F.R.D.\u00a0351 (D.N.J. 1987), for certifying collective actions under the FLSA. At step one, commonly known as \u201cconditional certification,\u201d courts permit notice to be sent to potential opt-in plaintiffs if the named plaintiffs show that they and the proposed notice recipients are \u201csimilarly situated.\u201d Courts have described the required evidentiary showing as \u201cmodest,\u201d because step one generally takes place at the outset of discovery. At step two, after individuals have opted in and the parties have gone through discovery, the court decides whether the collective action may go forward by applying a stricter standard to the evidence presented after the benefit of discovery to determine whether the opt-in plaintiffs are, in fact, \u201csimilarly situated\u201d to the named plaintiffs.<\/p>\n

Recent Decisions Departing from the Lusardi Standard<\/h3>\n

Although the Lusardi<\/i> standard had long been the approach adopted by federal courts nationwide, two circuit courts of appeal recently have adopted more stringent requirements for obtaining collective action certification. In January 2021, in Swales<\/em>\u00a0v. KLLM Transp. Servs., L.L.C.<\/em>, 985 F.3d 430 (5th\u00a0Cir. 2021), the Fifth Circuit rejected the Lusardi<\/em> approach and held that a district court must \u201crigorously scrutinize the realm of \u2018similarly situated\u2019 workers, and must do so from the outset of the case, not after a lenient, step-one \u2018conditional certification.\u2019\u201d Id.<\/em> at 434. The court reasoned that this higher level of scrutiny more accurately reflects guidance provided by the Supreme Court in Hoffmann-La Roche, Inc.<\/em>\u00a0v. Sperling<\/em>, 493 U.S. 165 (1989), that notice should serve case management purposes, and is not intended to \u201cstir up litigation.\u201d Swales<\/em>, 985 F.3d at 434.<\/p>\n

Under the Fifth Circuit\u2019s approach, the district court should determine at the outset \u201cwhat facts and legal considerations will be material\u201d to the similarity determination, and authorize the extent of discovery to be conducted accordingly. Id.<\/em> at 441. The court noted that the district courts have broad discretion to determine the amount of discovery necessary to determine when a group of employees is similarly situated, but emphasized that the determination must be made by the district court, and should be made as early in the case as possible.<\/p>\n

More recently, on May 19, 2023, the Sixth Circuit rejected both the \u201clenient\u201d approach in Lusardi<\/em>, as well as the \u201crigorous scrutiny\u201d of Swales<\/em>. In Clark<\/em>\u00a0v. A&L Homecare\u00a0& Training Ctr.,\u00a0L.L.C.<\/em>, 2023 WL 3559657 (6th Cir. May\u00a019, 2023), the Sixth Circuit maintained a two-step approach for determining whether \u201cpotential plaintiffs\u201d are \u201csimilarly situated,\u201d but raised the bar for plaintiffs at step one. Rather than making a \u201cmodest showing,\u201d plaintiffs must demonstrate a \u201cstrong likelihood\u201d that the \u201cpotential plaintiffs\u201d to be sent notice are \u201csimilarly situated\u201d to the named plaintiffs. Id.<\/em> at *4.<\/p>\n

In reaching its decision, the court rejected the Fifth Circuit\u2019s \u201crigorous scrutiny\u201d standard, reasoning that a district court likely will not have the information necessary to make that determination at an early stage in litigation. At the same time, sending notice to \u201cpotential plaintiffs\u201d who are not in fact \u201csimilarly situated\u201d to the plaintiffs, and therefore ineligible to join the collective action, \u201camounts to solicitation of those employees to bring suits of their own.\u201d Id.<\/em> Therefore, the court adopted a \u201cstrong likelihood\u201d standard akin to the standard required for issuance of a preliminary injunction. The court reasoned that \u201c[a] district court\u2019s determination to facilitate notice in an FLSA suit is analogous to a court\u2019s decision whether to grant a preliminary injunction\u201d because both decisions are \u201cprovisional,\u201d but also \u201chave immediate consequences for the parties.\u201d Id.<\/em> The Sixth Circuit held that district courts must consider the evidence presented by the parties in reaching their initial decisions regarding the similarity requirement, including that which may also relate to the merits of the claim and possible defenses such as the statute of limitations and arbitration agreements.<\/p>\n

An opinion concurring in part and dissenting in part agreed with the majority in rejecting the Fifth Circuit\u2019s heightened approach in Swales<\/em>, but disagreed with the standard the court adopted, explaining that it \u201cdepart[s] from the \u2018fairly lenient\u2019 standard long used in this circuit and nationwide\u201d and that the Lusardi<\/em> standard \u201cserves plaintiffs, defendants, and judicial economy.\u201d Id.<\/em> at *7, *9.<\/p>\n

Implications<\/h3>\n

After decades of courts applying Lusardi<\/em>, these recent cases stand as notable departures from the \u201clenient\u201d two-step process for issuing notice in collective actions and signal the potential for further developments. The standards articulated in Lusardi<\/em>, Swales<\/em>, and Clark<\/em> reflect different approaches to striking the balance between promoting efficiency and ensuring fairness to all parties, as well as recognizing FLSA\u2019s goal of allowing employees to enforce their rights through collective action and preventing abuses of this mechanism. In light of the newly created divide among circuit courts of appeal, this issue may be ripe for Supreme Court review.<\/p>\n<\/p><\/div>\n","protected":false},"excerpt":{"rendered":"

Summary The Fair Labor Standards Act of 1938 (\u201cFLSA\u201d) includes a collective-action mechanism that allows courts to direct that notice be sent to individuals who are \u201csimilarly situated\u201d […]<\/p>\n","protected":false},"author":1,"featured_media":10167,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[6],"tags":[651,366,610,3088,555,7654,4631,4355,7655,877,397,937,3655],"class_list":["post-10166","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-lawyers","tag-actions","tag-appeal","tag-circuit","tag-collective","tag-courts","tag-divide","tag-emerges","tag-flsa","tag-issuing","tag-notice","tag-plaintiffs","tag-potential","tag-standard"],"_links":{"self":[{"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/posts\/10166","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/comments?post=10166"}],"version-history":[{"count":0,"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/posts\/10166\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/media\/10167"}],"wp:attachment":[{"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/media?parent=10166"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/categories?post=10166"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/tags?post=10166"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}