Editor's Note: This article was originally published by Law360 on Feb. 10, 2025. To access the article with a Law360 subscription, click here.
Section 216 of the Fair Labor Standards Act imposes express requirements for collective, or group, relief: First, only similarly situated employees may join an action, and second, they may only join in writing.[1] Because the latter is inconsistent with Federal Rule of Civil Procedure 23, management and certification of FLSA collective actions presents unique challenges.
For well over 30 years, those challenges have been met through the two-step process for collective action certification, established in Lusardi v. Xerox Corp. in 1987 in the U.S. District Court for the District of New Jersey.[2]
But the propriety of Lusardi's two-step process is subject to increasing scrutiny, and the U.S. Supreme Court's Jan. 15 ruling in EMD Sales Inc. v. Carrera[3] may have sounded Lusardi's death knell.
The Lusardi Process
The first step of the Lusardi process, known as conditional certification, is characterized by its lenient standard. At this initial phase, the court is only determining whether notice should be sent to potential opt-in plaintiffs.
The plaintiff need only make what the U.S. Court of Appeals for the Second Circuit has called a "modest factual showing"[4] that they are similarly situated to the proposed collective. This low threshold lets courts facilitate notice to potential collective members without digging deeply into the merits, or digging at all, for that matter.
At this step, the standard is often satisfied by substantial allegations subject to lenient review, often based on pleadings or minimal evidence akin to a plausibility standard.[5]
Following the conditional certification and issuing notice, parties engage in discovery. After this period, defendant employers have the opportunity to seek decertification of the conditionally certified class.
This second step, decertification, involves a more rigorous analysis of whether the plaintiffs are truly similarly situated under the FLSA, and allows for a more thorough examination of the merits of collective treatment.
However, this process can be exceedingly costly and burdensome for employers, as it often occurs after significant litigation has taken place.
Calling Lusardi Into Question
Lusardi's two-step process has been widely adopted by district courts nationwide. However, in 2021, the U.S. Court of Appeals for the Fifth Circuit rejected Lusardi's lenient first step in Swales v. KLLM Transport Services LLC.[6] In 2023, the U.S. Court of Appeals for the Sixth Circuit joined the Fifth Circuit with its ruling in Clark v. A&L Homecare and Training Center LLC.[7]
Focusing on the FLSA's similarly situated requirement, Swales and Clark both noted the absence of any textual warrant for Lusardi's two-step process, and the likelihood that adopting a lenient standard at the outset can lead to solicitation of meritless claims.
Instead, they impose a higher bar for plaintiffs to clear before they can send notice inviting others to join the litigation. Swales called for district courts to "rigorously enforce" the FLSA's similarity requirement,[8] while Clark required a "strong likelihood" that the collective is similarly situated.[9]
Outside the Fifth and Sixth Circuits, some district courts are questioning Lusardi's continued viability. In the U.S. Court of Appeals for the Fourth[10] and Seventh[11] Circuits, district courts are openly split over the continued adherence to Lusardi. And in the U.S. Court of Appeals for the Eleventh Circuit, at least one has distinguished circuit precedent and declined to follow Lusardi.[12]
EMD Sales Framework
In EMD Sales, the Supreme Court confronted a circuit split over the standard of proof for overtime exemptions under the FLSA. In doing so, it rejected precedent established by the U.S. Court of Appeals for the Fourth Circuit in Carrera v. EMD Sales in 2023, requiring exemptions be proven by clear and convincing evidence.
The court's analysis starts with the fact that preponderance of the evidence is the proper default for the FLSA, and for civil claims in general.[13] It then turns to the text of the FLSA, the U.S. Constitution and federal common law to determine if there is any basis for departing from this default when applying exemptions.
Finding no support for a heightened standard of proof, it reversed the Fourth Circuit. The court held that the FLSA is based on "a balance of competing interests" and it cannot "choose sides in a policy debate": It "must apply the statute as written."[14]
These observations echo the concerns previously expressed by the Supreme Court in 2018 in Encino Motorcars LLC v. Navarro,[15] in which it held that the FLSA be given a "fair reading," instead of one based on a "flawed premise that the FLSA 'pursues' its remedial purpose 'at all costs.'"[16]
EMD Sales' analytical framework — applying the preponderance standard of proof of the FLSA's statutory requirements unless there is a textual, constitutional or common-law warrant to depart from it — is as authoritative as its narrow holding that overtime exemptions are not subject to a heightened standard of proof. A decision's mode of analysis[17] is no less binding than its resolution of the precise legal question before it.
No Reconciling With Lusardi's First-Step Lenience
The 1989 Supreme Court decision that first authorized court-facilitated notice — Hoffmann-La Roche v. Sperling[18] — cautioned that notice should not "in form and function" cross the line into forbidden solicitation.[19]
As both Swales and Clark noted, sending notice to employees who are not eligible to join the suit is inherently solicitation.[20]
The FLSA expressly forbids employees from joining if they are not similarly situated to the named plaintiff. Further, under EMD Sales' framework, a plaintiff must prove this element by a preponderance of the evidence.
The inescapable conclusion is that court-facilitated notice is forbidden solicitation when sent without showing that the plaintiff is similarly situated by a preponderance of the evidence.
Lusardi's first-step lenience is error, notwithstanding its widespread acceptance, as it is grounded in precisely the sort of policy rationale that EMD Sales rejects.
Instructive is the U.S. Court of Appeals for the Third Circuit's 2012 decision in Zavala v. Wal-Mart Stores Inc.[21] There, the Third Circuit affirmed its prior acceptance of Lusardi, but held that at step two, a plaintiff must establish by a preponderance of the evidence that the collective are similarly situated.[22] It declined to adopt a stricter standard at either step because the FLSA "should be liberally construed."[23]
Zavala's reliance on a principle of liberal construction was consistent with Hoffmann-La Roche, which held that the "broad remedial goal" of the FLSA "should be enforced to the full extent of its terms."[24] But EMD Sales — like Encino Motorcars before it — rejects such reasoning as "choos[ing] sides in a policy debate."[25]
By rejecting Hoffmann-La Roche's reliance on the "broad remedial goal" of the FLSA, EMD Sales signals that the court now concurs with the late Justice Antonin Scalia's dissenting criticism that Hoffmann-La Roche was based "in policy, but not in law."[26]
EMD Sales also calls Clark — and maybe Swales — into question, in part. Clark acknowledges that its "strong likelihood" standard — while a good deal stronger than Lusardi's — still requires less than the predominance standard.[27] But while Swales does not clearly say so, it seems that its "rigorously enforce" standard calls for a preponderance of the evidence.
The Sixth Circuit, at least, has only done half the work in dismantling Lusardi that EMD Sales requires.
Conclusion
In the nearly four decades following Lusardi, the two-step process "garnered wide acceptance," in the words of the Third Circuit.[28] After Encino Motorcars, however, two circuits outright rejected Lusardi, and the Supreme Court all but finished it off in EMD Sales last month.
In the coming years, expect more circuits to reject Lusardi in favor of a rule requiring demonstration by a preponderance of the evidence that members of the collective are similarly situated before joinder notice may be provided.
Going forward, this means that practitioners will need to focus explicitly on the propriety of Lusardi's two-step framework in circuits that have not yet rejected it. In circuits, or before district courts, that reject Lusardi, focus on what it would mean to prove that members of the collective are similarly situated by a preponderance of the evidence.
Before the latter courts, the inquiry would not take place against a fixed set of persons who have joined, as it does at Lusardi step two, but against a larger set of employees alleged to belong to a proposed collective.
The inevitable result will be that FLSA collective certification will look a lot like Federal Rule of Civil Procedure 23(b)(3): class certification based on common issues predominating over individual ones.
[1] 29 U.S.C. § 216(b).
[2] Lusardi v. Xerox Corp., 118 F.R.D. 351 (D.N.J. 1987).
[3] E.M.D. Sales, Inc. v. Carrera, No. 23-217, 604 U.S. ―, 2025 WL 96207 (Jan. 15, 2025).
[4] See, e.g., Myers v. Hertz Corp., 624 F.3d 537, 555 (2d Cir. 2010).
[5] See, e.g., Campbell v. City of L.A., 903 F.3d 1090, 1100 (9th Cir. 2018) ("akin to a plausibility standard"); Camesi v. Univ. of Pittsburgh Med. Ctr., 729 F.3d 239, 243 (3d Cir. 2013) ("lenient"); Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1214 n.8 (5th Cir. 1995) ("substantial allegations"), overruled on other grounds, Desert Palace Inc. v. Costa, 539 U.S. 90 (2003).
[6] Swales v. KLLM Transport Services LLC, 985 F.3d 430 (5th Cir. 2021).
[7] Clark v. A&L Homecare and Training Center LLC, 68 F.4th 1003 (6th Cir. 2023).
[8] Swales, 985 F.3d at 443.
[9] Clark, 68 F.34th at 1011.
[10] Compare Thomas v. Maximus Inc., No. 3:21CV498 (DJN), 2022 WL 1482008 (E.D. Va., May 10, 2022) (following Lusardi) with Mathews v. USA Today Sports Media Group LLC, No. 1:22-cv-1407, 2023 WL 3676795 (E.D. Va. Apr. 14, 2023) (rejecting Lusardi).
[11] Compare Richards v. Eli Lilly & Co., 725 F.Supp.3d 881 (S.D. Ind. 2024) (following Lusardi) with Laverenz v. Pioneer Metal Finishing LLC, No. 23-CV-1005-JPS, — F.Supp.3d — , 2024 WL 4753703 (E.D. Wis. Aug. 21, 2024) (rejecting Lusardi).
[12] Compare Hipp v. Liberty Nat. Life Ins. Co., 252 F.3d 1208 (11th Cir. 2001) (applying Lusardi under limited circumstances), with Roberts et al. v. Publix Super Markets Inc., Case No. 8:23-cv-2447 WFJ-CPT, 2024 WL 4753703 (M.D. Fla. Nov. 12, 2024) (distinguishing Hipp and declining to follow it).
[13] E.M.D. Sales, 2025 WL 96207, at *3.
[14] Id. at *5.
[15] Encino Motorcars LLC v. Navarro, 584 U.S. 79 (2018).
[16] Id. at 89.
[17] Scalia, The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175, 1177 (1989). See also, e.g., Allegheny v. ACLU Greater Pittsburgh Chapter, 492 U.S. 573, 668 (1989) (Kennedy, J., concurring in part and dissenting in part).
[18] Hoffmann-La Roche v. Sperling, 493 U.S. 165 (1989).
[19] Id. 174.
[20] Clark, 68 F.4th at 1010. Accord Swales, 985 F.3d at 434.
[21] Zavala v. Wal-Mart Stores Inc., 691 F.3d 527 (3d Cir. 2012).
[22] Id. at 536-37.
[23] Id. at 537.
[24] Hoffmann-La Roche, 493 U.S. at 174.
[25] E.M.D. Sales, 2025 WL 96207, at *5.
[26] Hoffmann-La Roche, 493 U.S. at 180 (Scalia, J., dissenting).
[27] Clark, 68 F.4th at 1011.
[28] Symczyk v. Genesis HealthCare Corp., 656 F.3d 189, 193 n.5 (3d Cir. 2011).