Fifth Circuit Sets New Standard For Certifying FLSA Collective Actions

On January 12, 2021, the Fifth Circuit Court of Appeals issued a landmark decision rewriting the rules for obtaining certification in collective actions under the Fair Labor Standards Act (FLSA).

In Swales v. KLLM Transport Services, L.L.C., No. 19-60847, the Fifth Circuit rejected the lenient approach first articulated a 1987 New Jersey district court opinion. Instead, the Fifth Circuit now requires district courts to conduct a more searching analysis before ordering notice to potential plaintiffs who may be eligible to opt in to an FLSA lawsuit.

The 1987 New Jersey case articulates a two-step approach. Under the first step, a plaintiff only needs to make a minimal showing of "similarly situated" employees to obtain "conditional certification" and have notice sent to potential plaintiffs. This initial showing could be based entirely upon a plaintiff's own pleadings and affidavits. As a practical matter, this means that notices have routinely been sent