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Two-Part Standard for Wage Collective Actions Gets 6th Cir. Test

Dec. 6, 2022, 6:00 PM

A challenge to the legal procedure judges use to decide whether workers can pursue federal wage-and-hour claims collectively as a group will face a significant legal test at oral argument before a federal appeals court in Ohio.

Ohio-based home health-care provider A&L Home Care & Training Center will urge the US Court of Appeals for the Sixth Circuit Wednesday to overturn a lower court’s August 2021 order that conditionally certified two collective actions accusing the company of denying overtime and travel time pay to home health aides. The district court denied certification of a related proposed collective class seeking reimbursement of vehicle expenses associated with performing job duties.

The Sixth Circuit’s review of the certification rulings could set precedent on whether plaintiffs in collective actions under the Fair Labor Standards Act should face a higher standard when seeking to resolve their claims as a group rather than individually.

The FLSA allows “similarly situated” workers to bring federal wage-and-hour collective actions against their employers, but neither Congress nor the US Supreme Court has clarified the proper procedure to certify these cases. At least the Fifth Circuit, in a decision last year, adopted a heightened standard requiring district courts to allow discovery early in the case and rigorously scrutinize whether potential opt-in plaintiffs are similar to one another before they can join an action.

A&L argued in its Sixth Circuit appeal that the absence of a controlling judicial precedent will result in disparate rulings among district courts because most of their appellate counterparts “have either remained silent or have given little guidance on what the proper standard is.”

Certification Steps

Lower courts—including the US District Court for the Southern District of Ohio where the case was heard—generally use a lenient standard in the first step of the two-part certification process.

Under this approach, courts examine whether there’s a “modest factual showing” that potential opt-in plaintiffs were subject to an unlawful common policy or practice. This determines whether workers are similar enough to one another to join a collective action. Once an action is conditionally certified, workers get opt-in notices.

The second stage takes place after discovery, where courts examine the conditional class to determine if the workers are sufficiently “similarly situated” to proceed as a group. This step either results in final certification or decertification of the class. It can also severely limit the number of workers that can join a case.

The Southern District of Ohio rejected A&L’s bid to follow the Fifth Circuit’s lead in abandoning this two-step process and instead use the heightened evidentiary standard.

While the Sixth Circuit doesn’t appear to have expressly adopted the two-step process, its 2017 holding in Monroe v. FTS USA LLC acknowledged that district courts use the “bifurcated certification framework.” The appeals court also “recognized that the evidentiary standard at the conditional stage is ‘fairly lenient,’” the district court said.

The conditional certification is a “mere ‘rubber stamp’ process without any discovery that is often disguised by pointless and boilerplate declarations for which the plaintiff nearly always wins,” A&L said in its Sixth Circuit brief.

“Forcing lower courts to put the cart before the horse and ‘conditionally’ certify a class before any discovery also leads to enormous litigation costs and gives plaintiffs settlement leverage,” the company added.

The US Chamber of Commerce and the National Federation of Independent Business jointly filed an amicus brief urging the Sixth Circuit to abandon the two-step standard.

But doing so would undermine the FLSA’s intent of protecting employees from oppressive working conditions, the home health aides argued in their brief. The statute accomplishes its purpose by allowing workers to bring claims on behalf of others who are similarly situated “who may not know their legal rights or fear retaliation in pursuing claims on their own,” they said.

“The two-step approach protects the claims of absent class members whose statute of limitations continue to run while also reserving a final determination on similarly situated until all discovery has finished,” the brief added.

DOL Weighs In

The dispute drew the attention of the US Labor Department, which threw its weight behind the workers and told the Sixth Circuit in a brief that the cases were properly certified under the Supreme Court’s 1989 Hoffmann-LaRoche v. Sperling holding.

That case gives district courts discretion to ensure “employees receiving accurate and timely notice concerning the pendency of the collective action, so that they can make informed decisions about whether to participate,” the agency said, citing the high court’s decision.

“This court has never boxed district courts into a rigid procedure for determining whether FLSA claimants are similarly situated, and it is unnecessary to do so now,” the DOL said. “District courts need not be stripped of routine discretion over the process for conducting discovery regarding, and providing notice to, similarly situated employees who may potentially opt in to a FLSA collective action.”

The National Employment Lawyers Association filed a similar brief backing the workers.

BakerHostetler represents A&L. Mansell Law represents the workers.

Attorneys for the parties didn’t immediately respond to requests for comment.

The case is Clark v. A&L Home Care & Training Ctr., 6th Cir., No. 22-3101, oral argument 12/7/22.

To contact the reporter on this story: Khorri Atkinson in Washington at

To contact the editors responsible for this story: Martha Mueller Neff at; Laura D. Francis at