On May 19, the U.S. Court of Appeals for the Sixth Circuit issued a decision in Clark v. A&L Homecare and Training Center LLC that raises the bar for what a plaintiff must show before a court will allow allegedly similarly situated employees to opt into a proposed collective action under Section 216(b) of the Fair Labor Standards Act.

In Clark, the Sixth Circuit criticized and rejected a judicially created approach that has prevailed for some 30 years, whereby courts typically have allowed so-called conditional certification of an FLSA collective action to proceed based on only lenient or modest showings that other potential opt-ins are similarly situated.

Instead, the Sixth Circuit has made clear that to the extent practicable, court-approved notice should be sent only if there is a strong likelihood that other employees are, in fact, similarly situated.

The Clark decision will reshape how FLSA collective actions proceed — at a minimum for cases filed in Michigan, Ohio, Kentucky, and Tennessee federal courts — to the benefit of employers named as defendants in such cases.

Employer-defendants will now have stronger bases to resist the early issuance of notice, greater leeway to develop a factual record to oppose such efforts, and more power to resist undue exertion to settle due to the threat of court-issued notice.

Read the article below.