Test for Wage Collective Actions Faces Skeptical Sixth Circuit

The legal standard judges use to decide whether workers can pursue federal wage-and-hour claims collectively appeared to be in limbo, as a federal appeals court judge questioned whether it’s an undue burden on employers.

The current opt-in notice process under the Fair Labor Standards Act imposes “significant consequences” on employers “with the courts’ blessing,” Judge Raymond Kethledge said during oral argument at the US Court of Appeals for the Sixth Circuit Wednesday.

The process, which allows conditional certification of a collective action before discovery, doesn’t allow courts to sufficiently determine whether workers are similar enough to join, he said.

The ...