Thursday, January 14, 2021
Yesterday, the United States Court of Appeals for the Fifth Circuit rejected the commonly used and admittedly lenient
Lusardi framework for Fair Labor Standards Act (FLSA) conditional certification and set a new framework for courts to determine whether and to whom collective action notice should be issued.
Swales, et al. vs KLLM Transport Servs., LLC, No. 19-60847 (5th Cir. Jan. 12, 2021), available
here. In a significant departure from the current practice, the Fifth Circuit directed the United States District Courts to “rigorously enforce” the “similarly-situated” requirement
prior to authorizing notice of the opportunity to join a collective action to potential FLSA claimants. The practical result of this framework: The potential to reduce the number of FLSA collective actions or at least the scope of FLSA collective actions.