Changes to FLSA certification process may be coming to 6th Circuit

Lusardi v. Xerox Corp. provides the widely used framework for the two-step conditional certification process under the Fair Labor Standards Act (FLSA). This process is now under review by the U.S. 6th Circuit Court of Appeals (which covers Kentucky, Michigan, Ohio, and Tennessee), following the 5th Circuit’s recent rejection of the process.

Current standard under Lusardi

The FLSA requires covered employers pay minimum wage and overtime to nonexempt employees. They have the option under the FLSA to file suit as a collective action, which allows them to file one lawsuit on behalf of a group of similar current and former employees to potentially recover wages that were incorrectly paid. But a court must first conditionally certify the collective action before employees can “opt in” to the lawsuit.

The Lusardi case established the steps courts often use to assess collective action certification under the FLSA. The first step requires the employees to allege they are similarly situated to others who were subject to a policy or practice that violated the FLSA. During this step, very little evidence is relied upon because courts focus on the pleadings and occasionally affidavit evidence. If the employees pass the first step and a conditional certification is granted, then they are permitted to distribute notice to expected members of the collective action to join in the lawsuit.