32 | Developments in Equal Pay Litigation ©2024 Seyfarth Shaw LLP The plaintiff’s burden at the conditional certification stage is quite low. A plaintiff need “merely provide some factual basis from which the court can determine if similarly situated potential plaintiffs exist.”247 “[C]onditional certification in the first step requires nothing more than substantial allegations that the putative class members were together the victims of a single decision, policy or plan.”248 If they succeed in doing so, the court will allow notice to be sent to each putative member of the collective action, which gives them an opportunity to join the lawsuit. The case then proceeds as a conditionally certified collective action, containing the named plaintiff(s) and all “opt-ins” who chose to join the case, until defendants are again given the opportunity to challenge certification at the decertification stage. Many employers think this two-stage process gives EPA plaintiffs a significant strategic advantage because the relatively lenient standard applied at the conditional certification stage provides an easier route to expand a case into a class-like proceeding. And as any employer who has been involved in employment class action litigation knows, once a case is certified—even conditionally certified as a collective action—the burden, costs, and stakes of that litigation increase dramatically. 247 Bouaphakeo v. Tyson Foods, 564 F. Supp. 2d 870, 892 (N.D. Iowa 2008) (quoting Salazar v. Agriprocessors, Inc., No. 07-cv1006–LRR, 2008 WL 782803, at *5 (N.D. Iowa Mar. 17, 2008)). 248 Id. (quoting Young v. Cerner Corp., 503 F. Supp. 2d 1226, 1229 (W.D. Mo. 2005)); see also Dietrich v. Liberty Square, L.L.C., 230 F.R.D. 574, 577 (N.D. Iowa 2005) (“Courts have held that plaintiffs can meet this burden by making a modest factual showing sufficient to demonstrate that they and potential plaintiffs were victims of a common policy or plan that violated the law.”).
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