In a notable shift from traditional procedure, the Sixth Circuit Court of Appeals recently outlined a new set of guidelines which district courts should adhere to when deciding whether to greenlight notice in Fair Labor Standards Act (FLSA) cases. This new approach was first adopted in the case of Clark v. A&L Homecare & Training Ctr., LLC, 68 F.4th 1003 (6th Cir. 2023). More in-depth coverage is available here.
The guidelines essentially provide an alternative approach to what many other Circuits usually refer to as the ‘conditional certification’ phase of a FLSA collective action. It is notably interesting because the Sixth Circuit is choosing to reject the usual characterization of this specific notice stage as ‘certification’ of any kind.
The change brought by the Sixth Circuit introduces a recommended approach that is deviant from the norm and signals a widening divide among the Circuit Courts on how to interpret and proceed with the initial stages of FLSA collective actions. This development will most likely prompt contentious debates among legal theorists and practitioners on the potential benefits and detriments the decision will usher in.
Given the newness of this development, the legal community will undoubtedly be waiting with keen interest to see how it plays out in the Sixth Circuit’s subsequent decisions. It is also quite plausible other courts may begin assessing this novel approach as they manage their own respective FLSA cases.
Lawyers and legal teams handling FLSA cases should be aware of this development as it could potentially impact future FLSA litigations.