Wage and hour collective actions under the FLSA continue to plague employers. The relative ease of obtaining conditional certification in FLSA collective actions, compared to Rule 23 class actions, make them an attractive option for plaintiffs’ counsel. With a certification order, plaintiffs’ counsel has more leverage to negotiate favorable settlements on behalf of employees.
Counsel for employers strive to defeat conditional certification in FLSA collective actions to avoid the time and expense of discovery, settlement negotiations and trial. When they are unsuccessful in opposing conditional certification, employers’ counsel often pursue motions for decertification.
Determining whether and how to oppose conditional certification or pursue decertification and preparing arguments to support such motions involve an evaluation of several strategic factors, including the jurisdiction of the case and the nature of the plaintiffs’ substantive claims.
An increasing number of wage and hour lawsuits are filed as hybrid cases with both FLSA collective claims and state law wage and hour class claims. Certification procedures are different under Section 216(b) of the FLSA and Rule 23 of the Federal Rules of Civil Procedure, which governs state wage and hour claims. Frequently, plaintiffs’ counsel use conditional certification as an avenue to obtain opt-ins to aid in the discovery process and bolster their Rule 23 evidence.
Jennifer Riley, Esq.
August 20, 2019