Fifth Circuit Provides Framework for Assessing Propriety of FLSA Collective Actions


Noting that courts “apply ad hoc tests of assorted rigor in assessing whether potential members are ‘similarly situated’” for purposes of establishing a wage-claim collective action under the Fair Labor Standards Act, the U.S. Court of Appeals for the Fifth Circuit has articulated a “workable, gatekeeping” framework to be applied at the outset of litigation.

In Swales v. KLLM Transport Services, LLC, the Fifth Circuit rejected a test that would permit conditional certification of the collective action and notice to potential plaintiffs, prior to determining whether such individuals were sufficiently “similarly situated” to join the collective action. Rather, the Fifth Circuit asserted that, “In our view, a district court must rigorously scrutinize the realm of ‘similarly situated’ workers, and must do so from the outset of the case, not after a lenient, step-one ‘conditional certification.’ Only then can the district court determine whether the requested opt-in notice will go to those who are actually similar to the named plaintiffs.” Thus, as an initial matter, a district court should identify “what facts and legal considerations will be material” to the similarly-situated determination and authorize preliminary discovery accordingly – which will vary from case to case. This ensures that notice of the action is sent only to potential plaintiffs, and not those who would not qualify.