Eastern District Of Virginia Judge Rejects Two-Step Conditional Certification Process For FLSA Collective Actions

Seyfarth Synopsis: In what could become a trend, Judge T.S. Ellis, III recently broke with other courts in the Eastern District of Virginia when he rejected the two-step conditional certification process commonly used in FLSA collective actions and endorsed the one-step process and rationale outlined in 2021 by the Fifth Circuit in Swales v. KLLM Transp. Servs., LLC.

Employers have long been subject to a two-step "certification" process when facing putative collective claims under the FLSA. This two-step process, established by the District of New Jersey's 1987 decision in Lusardi v. Xerox Corp., permits court-authorized notice to be sent to an initial, "conditionally certified" group of individuals based on allegations that the individuals were subject to a single decision, policy or plan by an employer. Employers may then move for "decertification" of the collective after the completion of discovery. As a result, employers are frequently forced to incur the time