Atlanta Employment Attorneys Blog
The Fair Labor Standards Act does not authorize class actions brought by groups of plaintiffs. Instead, the FLSA has a unique procedure under which groups of employees may join in civil litigation — the collective action. One of the critical crossroads in a potential collective action is the juncture where the judge decides whether or not to issue notice of the suit to similarly situated employees (and thereby give them the option to join the suit). With several new federal appeals court decisions in recent months and years, the standard for when to authorize notice is evolving. If you have questions about your FLSA matter and the viability of collective status, you should get in touch with an Atlanta collective action lawyer.
One of the more recent developments in this area occurred in the Seventh Circuit Court of Appeals in August.
The employee in that case, M.R., was a woman in her 50s who worked in a sales capacity for an Indiana-headquartered pharmaceutical company. When the employer allegedly passed her over for a managerial role (in favor of a much younger, less experienced candidate), the woman launched an age discrimination lawsuit. Specifically, she contended that her rejection was part of the employer’s pattern of passing over older candidates in favor of promoting younger, less qualified ones.
Under federal law, the Age Discrimination in Employment Act incorporates the FLSA’s collective action framework. So, if you need to advance an ADEA lawsuit on behalf of yourself and all employees who are similarly situated, you must advance a FLSA-like collective action, not a class action lawsuit. (The same is true for Equal Pay Act group actions.)
When deciding whether to authorize notice to similarly situated individuals (to give them the option to opt into the collective suit), many courts have followed a standard established in 1987 in the case of Lusardi v. Xerox Corp. The two-step approach established by Lusardi set a relatively lenient hurdle for an employee to clear and for a court to authorize notice, thereby allowing the plaintiff to proceed with the case as a collective action.
Recent Rulings and New Standards
More recently, several courts of appeal have diverged on the propriety of the Lusardi two-step framework. In 2021, the Fifth Circuit Court of Appeals established the most stringent notice standard among all the circuits, requiring a plaintiff to demonstrate by a “preponderance of the evidence” that the court should authorize notice. The Sixth Circuit established its own strict standard, although it is less demanding than the one the Fifth Circuit prescribes.
The appeals court in M.R.’s case charted a middle ground. That court stated that trial judges must consider both sides’ evidence regarding a similar situation and “may issue notice to potential plaintiffs when the named plaintiffs have raised at least a material factual dispute as to the similarity of potential plaintiffs.”
Additionally, this past summer, the Ninth Circuit Court of Appeals expressly rejected the Fifth Circuit’s high standard in a case involving restaurant employees and their restaurant chain employer. This places the Ninth Circuit on the side of a lenient notice standard. The restaurant has sought to appeal that ruling to the U.S. Supreme Court. Given the expanding array of diverging standards across the federal appeals courts, the Supreme Court may weigh in and set a uniform standard for authorizing notice.
Here in the 11th Circuit, the appeals court has endorsed the Lusardi two-step process as one viable means for deciding whether to authorize notice, but has not made the Lusardi approach mandatory.
What this means, then, is that a Supreme Court ruling on the issue — especially if it adopts the standard set by the Fifth or Sixth Circuits — would represent a significant change in FLSA collective actions here in Georgia, one that would give employers a much stronger position to defeat certification of a collective. A ruling that expressly adopts the Lusardi process would provide employees with a significantly stronger foundation for advancing their cases as collective actions.
These recent cases demonstrate that the law is constantly evolving and that changes, even if they occur far from Georgia, may ultimately have a profound impact on your FLSA case here. To pursue (or defend) your FLSA collective action as effectively as possible, you need skillful counsel who is fully up-to-date on the law and knowledgeable about how to apply it for your maximum benefit. For that kind of effective advocacy, look to the Atlanta FLSA collective action attorneys at Parks, Chesin & Walbert. Contact us through this website or call 404-873-8048 to schedule a consultation today and discover how our experience can benefit you.