GOP Leaders of U.S. States* asked the Supreme Court to gut the Fair Labor Standards Act (FLSA) collective action certification standard, and to try to prevent workers from joining together to hold their employers accountable for wage and hour violations.  

Both class and collective action cases typically begin the same way – with one worker, or a few workers, filing on behalf of themselves and other similarly situated workers.  Class action cases require workers to prove that the workers are similarly situated and meet rigorous standards. If they meet these standards, the case is certified as a class and all similarly situated workers are automatically included in the case. The statute of limitations is tolled for all workers to the date of the filing of the complaint. 

Historically, the collective action certification process has been a two-step process with a lenient first step. Under the FLSA, rather than automatically being part of a case, workers have to affirmatively join the case, and their statute of limitations tolls back two years from the filing of their claim form. Time is of the essence in these cases so workers don’t lose their claims. 

The two-step process benefits workers by allowing the lenient first step (conditional certification) to be processed rather quickly so workers can join the case while they still have claims within the statute of limitations. Later in the case, the judge will then go through a more rigorous final certification process, comparable to the one-step review in a Rule 23 class action case. 

In 2021, the Fifth Circuit Court of Appeals broke with the two-step tradition in a case titled Swales v. KLLM Transport. In that case, the Fifth Circuit established a new frontloaded one-step process. In 2023, the Sixth Circuit announced its own review process, and other district courts have been considering the new one-step process. Recently, the Seventh Circuit also addressed the standard for issuing notice to other workers. Thus, there are different standards depending on where parties litigate.    

In two cases, employers are asking the Supreme Court to decide if notice to other workers should be permitted, and if so, what standard should apply. In an amicus brief, multiple state attorneys general claim that the two-step process allows non-parties to join a case, because they aren’t considered parties to the case until the second, final certification, step. They claim this unfairly prejudices both private employers and state and local government employers who are pressured to settle for all opt-ins even before the final certification. They also claim the split amongst the lower courts has sown confusion as to what the requirements are in the conditional certification step. The Attorneys General ask the court to consider doing away with the collective action process altogether. 

Changing the long-held two-step process for collective action certification, or gutting it altogether, would be devastating for workers. The court has already rolled back workers’ rights by allowing companies to force workers to waive their right to their day in court through mandatory individual arbitration. When employers are alleged to violated workers’ wage and hour rights, workers deserve to know that they can band together and efficiently and collectively pursue justice. Corporations hold all of the bargaining power, and this attempt to throw out the process to issue notice to workers will result in more workers being cheated out of their wages to the benefit of corporations, their shareholders, and CEOs. Wage theft is an $8+ billion problem is the United States. And by taking away or further limiting workers’ rights will only disenfranchise and harm workers.  

*The amicus brief is signed by attorneys general from the following states: OH, AL, AR, FL, GA, ID, IN, IA, KS, LA, MO, NE, ND, OK, SD, SC, TN, TX, UT, WV. It is also signed by the Speaker of the Arizona House of Representatives and the president of the Arizona Senate.