Sixth Circuit Creates A Novel Standard For Fair Labor Standards Act Lawsuits In Ohio, Michigan, Kentucky, And Tennessee

• Published date: 29 June 2023
• Law Firm: Taft Stettinius & Hollister
• Author: Andrew Murphy and Benjamin S. Morrell

Federal law authorizes employees to sue for violations of the Fair Labor Standards Act (FLSA) on behalf of themselves and also those "similarly situated" to them. Over 30 years ago, the Supreme Court recognized that, at least in some circumstances, district courts have discretion to "facilitate" notice of pending litigation to employees who may be "similarly situated" to the plaintiff ' meaning that they worked for the same employer in a similar role during the relevant time period, while being harmed by the same allegedly unlawful policies or practices.¹ As a practical matter, this typically involves the plaintiff's attorney or a third-party administrator sending court-approved notices of the lawsuit to a defendant's employees using the contact information the defendant has been ordered to provide. However, the Supreme Court has never explained what a plaintiff must show before a court that may authorize such notices.

The timing and circumstances under which a district court authorizes notice to be issued are significant for two main reasons:

• First, unlike in a traditional class action, in which all class members automatically participate unless they affirmatively opt out, a...