Don’t Call it ‘Conditional Certification’: Sixth Circuit Sets New Heightened Standard for Notice in FLSA Collective Actions

Several years after the Fifth Circuit Court of Appeals abandoned the two-step Lusardi certification approach in Swales v. KLLM Transport Services, the U.S. Court of Appeals for the Sixth Circuit has now rejected the well-trodden “lenient” standard of the first step – though it also reject the standard set out in Swales. The Sixth Circuit in Clark, et al., v. A&L Homecare and Training Center, LLC, et al., held that notice to potential plaintiffs should only be sent if plaintiffs show a “strong likelihood” that such absent employees are similarly situated to the named plaintiffs themselves. In so holding, the court also explained that such motions to authorize notice are not properly referred to as “certification” motions (conditional or otherwise), as the mechanism is different in substance and in process from class certification under Federal Rule of Civil Procedure 23.