Sixth Circuit Rejects The Traditional Two-Step Conditional Certification Process In FLSA Collective Actions

Executive Summary: The two-step conditional certification process in Fair Labor Standards Act (FLSA) collective action lawsuits, known as the Lusardi standard, has been the law of the land for over 30 years. The conditional certification process heavily tips the scales in favor of plaintiffs and is costly and burdensome for employers. The Fifth Circuit, in 2021, became the first appellate court in 30 years to reject the Lusardi two-step process and, just this month, the Sixth Circuit followed suit. A circuit split has developed, as both courts have established their own standards for what level of evidence a plaintiff must provide to establish that she is similarly situated to a group of employees that she seeks to represent, before a district court authorizes notice to be sent to the putative class of plaintiffs. This circuit split provides an opportunity for the U.S. Supreme Court to take up this issue.