The Bar Is Low – But It Does Exist: A Reminder That Defeating (Or Limiting) Conditional Certification Is Not Impossible

In a recent case from the District of Colorado, a federal judge made clear that (at least in the Tenth Circuit) the first step of conditional certification is not just a rubber stamp to move on to the next stage of litigation in Fair Labor Standards Act ("FLSA") collective action lawsuits. And while other courts are rejecting the two-step process altogether (see our recent blog post here), even when the lower conditional certification standard is applied, it still can have some teeth to it.

In Bowling v. DaVita, Inc., the plaintiff sought conditional certification of a nationwide collective of nurses and technicians claiming unpaid overtime wages based on working through their required unpaid lunch breaks pursuant to a company-wide policy. Despite the existence of a written policy requiring that employees be compensated for working during lunch breaks, plaintiff argued that the employer actually mandated employees always clock out for lunch breaks – but that