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

• Published date: 29 June 2023
• Subject Matter: Employment and HR, Litigation, Mediation & Arbitration, Discrimination, Disability & Sexual Harassment, Employee Rights/ Labour Relations, Trials & Appeals & Compensation
• 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 "collective action" brought under the FLSA requires every would-be participant to affirmatively opt in to the lawsuit.
• Second, sending notice of a lawsuit to potential opt-in plaintiffs can increase the number of participating plaintiffs by a hundredfold or more, placing significant settlement pressure on the defendant. Indeed, most FLSA cases settle soon after the court approves issuing notice to potential opt-ins.

The Sixth Circuit's Decision

Recently, the U.S. Court of Appeals for the Sixth Circuit ' which hears appeals from the federal district courts in Ohio, Michigan, Kentucky, and Tennessee ' became one of the few circuit courts to weigh in on the important question of what a plaintiff needs to show before notice of a pending FLSA lawsuit may be sent to potential participants.

In Clark v. A&L Homecare & Training Center, LLC, a divided panel of the Sixth Circuit ruled that the district court had been too quick to authorize notice, and in so doing created a new evidentiary standard for authorizing notice in FLSA cases.² Referencing the familiar preliminary injunction standard, the Sixth Circuit concluded that plaintiffs seeking the court's assistance in facilitating notice of an FLSA suit "must show a 'strong likelihood' that those employees are similarly situated to the...