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ARTICLE · 06 JUNE 2023

2-Step Certification For FLSA Collective Actions On Its Way Out?

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The 2-step certification process utilized in Fair Labor Standards Act (FLSA) collective actions dates back to 1987 when the standard was articulated by the court in Lusardi v. Xerox Corp.

United StatesEmployment and HR
Reave Shewmake
Reave Shewmake
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The 2-step certification process utilized in Fair Labor Standards Act (FLSA) collective actions dates back to 1987 when the standard was articulated by the court in Lusardi v. Xerox Corp. 118 F.R.D. 351 (D.N.J. 1987). Commonly known as the Lusardi test, the Sixth Circuit rejected this 2-step process earlier this month in Clark v. A&L Home Care and Training Center, LLC, Nos. 22-3101/3102, 2023 WL 3559657 (6th Cir. May 19, 2023), requiring employees to now meet a higher bar before notice of the pending suit can be sent to potential class members.

Fair Labor Standards Act ("FLSA") collective actions are multiple plaintiff lawsuits that are filed when there is an alleged violation of employees' right to federal minimum wages or federal overtime pay. Generally, at least one named plaintiff will file the lawsuit on behalf of "similarly situated" other plaintiffs who seek to send notice out and solicit other employees to join them in their lawsuit against the employer.

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