We hold that, for a district court to facilitate notice of an FLSA suit to other employees, the plaintiffs must show a “strong likelihood” that those employees are similarly situated to the plaintiffs themselves. That standard requires a showing greater than the one necessary to create a genuine issue of fact, but less than the one necessary to show a preponderance. The strong-likelihood standard is familiar to the district courts; it would confine the issuance of court-approved notice, to the extent practicable, to employees who are in fact similarly situated; and it would strike the same balance that courts have long struck in analogous circumstances.
With those words, the 6th Circuit ended decades of uncertainty in Fair Labor Standards Act wage and hour collective action lawsuits in my Circuit on the issue of when in such a lawsuit a district court should determine which employees properly belong in the the class.
In a two-step process (which the 6th Circuit had used by inertia for decades), a district court would conditionally certify a class and order the sending of opt-in notices to employees upon a “modest factual showing” of similarity among members of the proposed class. The district court would then take up the actual issue of “similarly situated” on summary judgment, after the close of discovery.
That two-step process makes no sense. Class action litigation is expensive. By deferring this issue of what is and is not properly certified as a class until after the close of discovery, the two-step process significantly increases litigation costs by litigating collective actions that have no business being litigated as such. It’s also a huge burden on the courts and a waste of their already scarce resources.
It’s for this reason that this case is a huge win for employers in the 6th Circuit who face the prospect of a wage and hour collective action. I’m just keeping my fingers crossed that this standards survives the very likely en banc appeal to the full 6th Circuit and the slightly less likely cert. petition to the Supreme Court.