Sarah E. Pawlicki Quoted on Sixth Circuit Court Decision

FLSA Collective Actions and Expected Impact on Employers


The Sixth Circuit Court of Appeals rejected the two step approach used when litigating wage and hour suits on behalf of workers in Clark v. A&L Home Care and Training Center et al.  The Sixth Circuit opted for its own standard rather than follow the Fifth Circuit Court of Appeals.  This decision likely will result in a higher burden of proof for Fair Labor Standards Act plaintiffs.

Since 1987 courts often followed a two-step process to certify FLSA cases as collective actions. The first step, referred to as “conditional certification,” required plaintiffs to make a minimal showing that the potential collective members were similarly situated enough that they should be provided a notice of the case and given an opportunity to “opt-in.”   Step two determined if the plaintiffs were in fact similarly situated.  The Sixth Circuit rejected the two step conditional certification process and has now held that before notice may be sent to other employees, the plaintiff must establish a “strong likelihood” that the other employees are similarly situated to the plaintiffs.

Both Law360 and BloombergLaw quoted labor and employment attorney Sarah E. Pawlicki in regards to the decision.  Ms. Pawlicki told Law360, “I think the Sixth Circuit told us very clearly that the minimal showing that was previously required is not enough. There has to be a higher degree of probability that the plaintiff will actually be able to establish similarly situated.”  She also said in BloombergLaw,  “As a result of this decision, plaintiffs now face a higher burden before being permitted to solicit potential plaintiffs, but admittedly the Sixth Circuit’s standard is less difficult than the Fifth Circuit’s. Employers may now have a better opportunity to successfully challenge wage and hour litigation.”

Ms. Pawlicki, a member of Eastman & Smith, has a broad range of employment experience, partnering with human resource professionals to make workplaces better (and legally compliant). Her experience encompasses collective bargaining and grievance issues, employment law compliance and workers' compensation law. She is also a Society for Human Resource Management Senior Certified Professional (SHRM-SCP).  If you have any questions about this decision, please contact Ms. Pawlicki.

Law360 Article:  3 Takeaways as 6th Circ. Transforms FLSA Collective Actions

BloombergLaw Article:  Sixth Circuit Creates New Test for Wage Collective Actions

(Subscriptions are required for both articles.)