I have often lamented how easy it seems for plaintiffs to secure conditional certification in a FLSA collective action. A few Affidavits, often identical in content, are produced and then, voila, the plaintiff gets conditional certification which then inordinately complicates matters for the employer and makes litigating the case and, of equal import, settling the case, that much harder (and more expensive). Well, the Fifth Circuit might have just signaled that a change, a new day, is coming on this front. That Court just set out a protocol for certification that requires a district court to “rigorously scrutinize” purported similarities among plaintiffs from the commencement of the collective action. The case is entitled Swales et al. v. KLLM Transport Services LLC, and issued from the Court of Appeals for the Fifth Circuit.
In a published opinion, meaning it is precedential, the Judges criticized the current conditional certification process as overly lenient for the plaintiffs and that it “frustrates, rather than facilitates” the collective action process. In response, the Court set forth a series of guidelines to “require” that a lower court request preliminary discovery on certain fundamental issues and then render a final decision regarding certification to allow the case to proceed, or not. This framework allows a court to resolve possibly dispositive, initial, issues that would now normally be held in abeyance at the conditional certification stage.
As the Court stated, “in our view, a district court must rigorously scrutinize the realm of ‘similarly situated’ workers, and must do so from the outset of the case, not after a lenient, step-one ‘conditional certification. Only then can the district court determine whether the requested opt-in notice will go to those who are actually similar to the named plaintiffs.”
The plaintiffs alleged that they were misclassified as independent contractors. The lower court Judge granted conditional certification but then, sua sponte, certified the decision for appeal, observing that “few areas of the law are less settled than the test for determining whether a collective action should be certified. The Fifth Circuit disapproved of the so-called Lusardi test, otherwise known as the “Goldilocks” approach to the two-step certification test. Under this standard, the lower court grants conditional certification prior to discovery being conducted and then revisits certification question later, where it renders a final decision on whether to sustain that earlier decision.
Pursuant to the new standard, the lower court is now required to identify any facts and legal issues that may be pertinent to the certification question and direct that discovery be done on those issues. After discovery, the court could grant certification, or rule that the purported class members were too dissimilar to merit certification or establish certain sub-classes. Lastly, more discovery could be ordered.
This case, if picked up on by other Circuits, could have a major impact on the manner in which certification is, or, rather is not, granted. Maybe there will come an end to the facile, easy manner in which plaintiffs nowadays secure conditional certification, putting that much more pressure on the defendant employer to capitulate, I mean, settle.
Maybe the pendulum is swinging back a little…