Sixth Circuit Rejects Traditional Certification Process in FLSA Collective Actions, Deepening Circuit Court Divide
In Clark v. A&L Homecare & Training Ctr., LLC, 68 F.4th 1003 (6th Cir. 2023), the Sixth Circuit Court of Appeals recently created a new standard for its district courts to employ when determining whether to authorize notice in Fair Labor Standards Act (FLSA) cases, or what other Circuits typically refer to as the “conditional certification” phase of a FLSA collective action. In fact, the Sixth Circuit altogether rejects characterization of this notice stage as “certification” of anything, conditional or otherwise, noting that the term is borrowed from Rule 23’s governance of class actions, which are “fundamentally different” from FLSA collective actions.
Sixth Circuit’s New Standard
Rather than adopt the widely applied “two step” conditional certification process first set forth in Lusardi v. Xerox Corp., 118 F.R.D. 351, 361 (D.N.J. 1987), and subsequently adopted and followed by district courts in the majority of Circuits, including the First, the Clark