Seventh Circuit Adopts Evidence Driven Approach To Conditional Certification

On August 5, 2025, the Seventh Circuit in Richards v. Eli Lilly & Co. replaced the long-used, plaintiff-friendly Lusardi "modest factual showing" standard for conditional certification in Fair Labor Standards Act (FLSA) collective actions. The new framework likely makes it harder for plaintiffs to secure broad, early notice and allows courts to limit or deny notice where evidence of similarity is weak. Still, according to the court, the new "watchword" is "flexibility."

Why Conditional Certification Matters

In FLSA cases, employees may sue on behalf of themselves and "other employees similarly situated." Courts can send notice to potential plaintiffs, who must opt in. While notice doesn't create a legal class, it often has major effects: larger groups increase costs, expand potential liability and drive settlement pressure.