18th Annual Workplace Class Action Report - 2022 Edition

V. Significant Collective Action Rulings Under The Fair Labor Standards Act Annual Workplace Class Action Litigation Report: 2022 Edition 81 Fair Labor Standards Act (“FLSA”) collective action litigation continued at a rapid pace in 2021. FLSA collective actions were filed more frequently than all other types of workplace class actions. Statistically, plaintiffs were successful in securing conditional certification approximately 81% of the time. In terms of “second stage” decertification motions, employers also prevailed in over half of those cases (approximately 53% of the time). A map showing these rulings is as follows: Analysis Of FLSA Certification Decisions CIRCUIT COURT D.C. Circuit Court of Federal Claims Conditional Certification Motions Granted 5 47 15 13 13 50 17 17 31 10 5 1 2 Conditional Certification Motions Denied 1 9 5 2 9 7 1 3 8 1 7 0 0 Decertification Motions Granted 0 1 0 0 1 1 1 2 1 0 3 0 0 Decertification Motions Denied 0 1 1 0 2 0 0 1 2 1 0 1 0 Sub-Total: 226 Conditional Certifications Granted / 53 Conditional Certifications Denied 10 Decertification Motions Granted / 9 Decertification Motions Denied Whereas in Title VII class actions the courts undertake a “rigorous analysis” required by the U.S. Supreme Court decisional law for determining class-worthiness under Rule 23, courts have continued the trend of utilizing a two- step process for determining certification in FLSA collective action cases under 29 U.S.C. § 216(b). Under the first step of this approach, known as “notice” or “conditional” certification, courts generally impose a much lighter burden on plaintiffs to obtain conditional certification and to authorize a notice being sent to all putative collective action members. It is only at a second-stage proceeding, usually when considering a motion to decertify after discovery has been taken, that courts apply a more rigorous analysis of the evidence offered by plaintiffs. In 2021, the Fifth Circuit departed from decades of legal precedent as to this certification procedure in Swales v. KLLM Transport Services, LLC , 985 F.3d 430 (5th Cir. 2021). Swales decided that the appropriate standard of review is to take discovery and a fuller evidentiary record into account, which is aligned with the approach for class certification motions under Rule 23. Thus far, courts outside of the Fifth Circuit have not followed Swales .