FLSA Collective Action: Erosion of Lusardi Two-Step Certification, Alternative Standards, Circuit Split
Course Details
- smart_display Format
On-Demand
- signal_cellular_alt Difficulty Level
Intermediate
- work Practice Area
Employment and Workers Comp
- event Date
Thursday, July 31, 2025
- schedule Time
1:00 PM E.T.
- timer Program Length
90 minutes
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This 90-minute webinar is eligible in most states for 1.5 CLE credits.
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This CLE webinar will examine the status of FLSA collective action certification following the Swales and Clark appellate decisions, including a close look at the standards established under each that depart from the two-step certification method in Lusardi. The panel will address what effect these decisions are having on other circuits and the impact on litigation strategy for plaintiff and defense counsel.
Mr. Maatman has nearly four decades of experience practicing law and has defended some of the most significant bet-the-company cases ever filed against corporate America. He has represented companies, executive teams and boards across the country in class action litigation, ranging in size from thousands to hundreds of thousands of claims by employees. Among Mr. Maatman's accomplishments, he defended and defeated the largest systemic enforcement action ever brought in the history of the U.S. Equal Employment Opportunity Commission, the first Attorney General prosecution of a Wall Street company for workplace discrimination and harassment, and the largest wage and hour class and collective actions ever brought in Florida and New York. While he is known to be a fierce litigator, Mr. Maatman also helps his clients anticipate large-scale litigation risks before they happen to prevent issues that could turn into litigation. Mr. Maatman pioneered the process of conducting employment-practices audits to assist employers in structuring effective and practical personnel policies and protocols. He also writes and lectures extensively on class action and employment litigation topics. Mr. Maatman has authored six books on employment law topics and has spoken to employer groups throughout the United States, as well as in Asia, Europe, Canada and Mexico.
Ms. Riley has defended companies faced with significant complex litigation matters for more than two decades. She regularly defends companies facing class actions, collective actions, pattern or practice lawsuits, and other types of representative proceedings, ranging in size from dozens to tens of thousands of claims. Ms. Riley has represented clients facing bet-the-company cases in a wide range of complex civil litigation matters in federal and state courts across the country. She also provides counsel to employers seeking to navigate thorny issues, including investigations, compliance, and terminations. Ms. Riley is a regular speaker, author, and presenter regarding class action issues, legal developments, and challenges that companies may face in the future.Â
The Fifth and Sixth Circuit court decisions in Swales and Clark have broken away from the Lusardi two-step certification method for FLSA collective actions and created alternative standards that have also begun to be adopted by district courts in other circuits.
Under the more lenient Lusardi approach, courts conditionally certify a collective action with a minimal showing by plaintiffs that potential collective members are similarly situated. However, in Swales v. KLLM Transport Services L.L.C. (2021), the Fifth Circuit rejected Lusardi and established a new standard whereby district courts should identify at the outset of the litigation the facts and legal considerations to determine whether potential collective members are similarly situated; authorize preliminary discovery necessary to make the similarly situated determination; and rigorously scrutinize the available evidence to determine whether and to whom notice should issue.
Furthermore, in Clark v. A&L Home Care and Training Center L.L.C. (2023), the Sixth Circuit also rejected Lusardi but declined to accept the Swales standard. The court found that deciding whether to issue notice was analogous to the decision of whether to grant a preliminary injunction, and it adopted a standard wherein plaintiffs must show a "strong likelihood" that other employees are similarly situated to the plaintiffs before the court issues notice.
The Swales and Clark decisions have created a circuit split. These decisions have also begun to influence jurisprudence in other circuits. District courts in the Fourth and Eleventh Circuits have adopted the Swales standard, creating a split within those circuits. And the Seventh Circuit is currently examining what should be the applicable standard.
Listen as our expert panel examines the state of FLSA collective action certification after Swales and Clark. The panel will discuss the impact those decisions may have on FLSA collective action litigation strategy moving forward for plaintiff and defense counsel and describe best practices for practitioners.
- Introduction: widely used Lusardi two-step certification method
- Swales v. KLLM Transport Services L.L.C. (5th Cir. 2021)
- Clark v. A&L Home Care and Training Center L.L.C. (6th Cir. 2023)
- Adoption by other circuits
- Fourth Circuit district court split
- Eleventh Circuit district court split
- Seventh Circuit review
- Others
- Impact on plaintiff and defense litigation strategies
- Burdens of proof
- Discovery
- Motion practice
- Other considerations
- Takeaways for practitioners
The panel will review these and other important considerations:
- How do the standards established in Swales and Clark impact litigation strategy for plaintiff and defense counsel, including burdens of proof that must be met, timing and extent of discovery, and motion practice?
- What effect have those decisions had on jurisprudence in other circuits?
- What impact might these decisions have on where and how to bring FLSA collective actions?
- What are best practices for plaintiff and defense counsel when litigating FLSA collective actions in the affected jurisdictions?
