Two cases that recently came to our attention demonstrate the sometimes unpredictable nature of “conditional certification” under the federal Fair Labor Standards Act (FLSA). Conditional certification is an initial determination made by a court in a case where plaintiffs are seeking to bring an FLSA class-based lawsuit.
In the two recent cases we reviewed, the outcome in each hinged on the court’s conclusions as to whether the plaintiffs were “similarly situated” enough to each other to proceed as a class — that is, whether they were bringing the same kind of case with similar facts. One court granted conditional certification, and the other court denied it.
Because a conditional certification can be a make-or-break factor for whether an FLSA collective action can go forward, the lack of consistent standards applied by the courts can create a challenge for an employer in forming its defense strategy.
Members of the Equal Employment Advisory Council (EEAC) can read more here.