The Sixth Circuit recently issued a decision clarifying the standard required to send notice to other "similarly situated" class members in Fair Labor Standards Act (FLSA) collective actions, which involve wage and hour claims.
For background, the FLSA mandates that employers pay a federal minimum wage and overtime to certain types of employees. Employees can sue for alleged violations of those mandates on behalf of themselves and other employees similarly situated. But no employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.
Normally plaintiffs come to the courts, rather than vice versa. However, the court may come to the plaintiff when the subject is submitted to it by a party who asserts his rights in the form prescribed by law. Under the FLSA, the district court may facilitate notice of an FLSA suit, and thereby provide an individual an opportunity to join the suit, upon a showing that he or she is similarly situated to the original plaintiff.
Prior to the Sixth Circuit's holding, there need only be a "modest" showing that the individual is similarly situated to the original plaintiff. This was a "fairly lenient" standard.
However, the Court found that the facilitation of notice must not resemble the solicitation of claims. It analogized the decision to send notice to similarly situated individuals to a court's decision to grant a preliminary injunction, in part, because both decisions are provisional.
As a result, the Court adopted the preliminary injunction standard of requiring that a plaintiff make a showing that there is a "strong likelihood" that the employees are similarly situated to the plaintiffs in regard to their wage and hour claims. That standard is greater than the prior "modest showing" standard, and therefore, more difficult for plaintiffs to send notice to other employees.
Cite: Clark v. A&L Homecare & Training Ctr., LLC, 68 F.4th 1003 (6th Cir. 2023).
Ohio Overtime Laws can be difficult to understand. If you have a question about your pay, or the way you are paying your employees, please contact a Columbus Employment Lawyer to discuss.
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