Seyfarth Synopsis: The Second Circuit has
held that the standard for final FLSA collective action
certification is less stringent than the standard for class action
certification under Rule 23.
Wage-hour litigators have long been familiar with the
proposition that a plaintiff's burden to obtain initial
collective action certification under the Fair Labor Standards Act
is "lenient," "minimal," or some similar label
conveying an easygoing level of court review. Defense lawyers, who
don't typically relish briefing motions when the
plaintiff's burden is so low, have taken comfort in knowing
that, once discovery is complete, the plaintiff will be held to a
much higher burden at the "final" certification
stage.
