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Fifth Circuit Rejects Two-Step FLSA Certification Process


Fifth Circuit Rejects Two-Step FLSA Certification Process
Tuesday, February 2, 2021
For over 30 years, most district courts throughout the country have used a two-step conditional certification process to govern certification of collective actions under the Fair Labor Standards Act (FLSA).  But in its recent and game-changing opinion, 
Swales v. KLLM Transport Services, LLC, the Fifth Circuit rejected that two-step process and laid out a stricter framework for FLSA collective actions.
Under the FLSA, a named plaintiff can bring an action on behalf of him- or herself and all other “similarly situated” individuals.  Unlike Rule 23 class actions, FLSA collective actions require other employees to opt-in to the case by filing written notice with the court.  As part of the opt-in process, the Supreme Court has held that district courts can authorize notice be sent to the similarly situated employees advising them of their right to join the collective a ....

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