Conditional Certification of an FLSA Collective Action Is Not a Foregone Conclusion in the Fifth Circuit

The Western District of Texas recently denied a plaintiff’s motion to authorize notice to a purported collective of employees in a Fair Labor Standards Act (FLSA) case in Rodney Hoffman, on behalf of himself and all others similarly situated, v. Fluid Fleet Services, LLC,[1]relying on a 2021 Fifth Circuit decision setting a new, more rigorous standard for determining whether an FLSA case can proceed on a collective basis.[2] In Swales, the Fifth Circuit explained that, under its new test, notice must go out only to those who are considered “similarly situated” to the named plaintiffs.[3] To answer the question as to who is “similarly situated,” the court explained:

[A] district court should identify, at the outset of the case, what facts and legal considerations will be material to determining whether a group of “employees” is “similarly situated.” And then it should authorize preliminary discovery accordingly. The amount of discovery necessary to make that determination will vary case by case, but the initial determination must be made, and as early as possible.[4]

Only after the district court has identified whether a group of employees is similarly situated can a district court determine the proper process for issuing notice.[5] If a district court determines that a group of employees is not “similarly situated,” it may decide that the action cannot proceed on a collective basis.[6]

Hoffman Holding Applies the Swales Standard in Denying Notice

Applying Swales, district courts in the Fifth Circuit, including Hoffman, have explained that in order for notice to issue, the plaintiff bears the burden of proving at the outset that the purported class members are demonstrably similar, and that there is a factual nexus among their claims so that hearing them all in one proceeding is fair to all parties and does not make trial unmanageable due to individualized inquiries.[7] “In examining whether an FLSA plaintiff has met her burden for certification, courts may consider whether [any] potential [opt-in] plaintiffs were identified; whether affidavits of potential plaintiffs were submitted; and whether evidence of a widespread discriminatory plan was submitted” following preliminary discovery.[8]

The Hoffman plaintiff alleged that he and the other fleet lieutenants were misclassified as salaried, exempt employees and not paid overtime in violation of the FLSA.[9] After giving the plaintiff nearly a year to conduct notice discovery to meet the Swales standard, the court denied the plaintiff’s motion to authorize notice to the potential FLSA collective members.[10] The plaintiff merely provided his own declaration indicating that other employees were treated similarly to him and a list of approximately 41 other fleet lieutenants.[11] The plaintiff did not identify any potential opt-in plaintiffs by name or submit any affidavits (or other evidence) from any potential opt-in plaintiffs indicating that they performed the same job duties and worked the same hours as the plaintiff or that they were otherwise not properly compensated for their work.[12] Therefore, it was impossible for the district court to “rigorously scrutinize the realm of similarly situated workers” as required by Swales.[13]

The district court in Hoffman noted that “Swales was not only concerned with the practical question of whether merits questions can be answered collectively but also with the risk that ‘a court’s intervention in the notice process [might] devolve into the solicitation of claims.’”[14] Because the plaintiff had “not provided so much as the name of the other [f]leet [l]ieutenants who allegedly complained to [the p]laintiff about working unpaid overtime hours, let alone an affidavit from [any] potential opt-in plaintiff[,]” the district court was unable to conclude that any of the other fleet lieutenants were misclassified without drawing multiple inferences in favor of the plaintiff’s contentions.[15]

Key Takeaways:

Employees Cannot Solicit Opt-In Plaintiffs Without Concrete Evidence, Regardless of What Standard Applies

Employers facing collective actions in the Fifth Circuit can glean important takeaways from Hoffman and other district court cases decided post-Swales. There are compelling reasons to adopt the Fifth Circuit’s more rigorous approach, such as consistency, practicality, judicial economy and neutrality, and the need to avoid soliciting potential opt-in plaintiffs.[16] Perhaps most novel is the need to prevent the solicitation of claims. It is not hard to imagine how a named plaintiff could use the notice process to his advantage to solicit opt-ins to form a larger FLSA collective particularly where, as in Hoffman, the plaintiff/employee had no concrete evidence of any other employee being treated similarly. The Fifth Circuit seeks to avoid this result by requiring the named plaintiff to prove knowledge regarding at least some similarly-situated workers before the notice process begins.

Other Circuit Courts have not adopted the Swales standard.[17] District courts in other circuits have been reluctant to utilize the Fifth Circuit’s approach, citing the need for discretion to manage the docket and streamline discovery and other considerations of judicial economy.[18] According to some district courts’ reasoning, discovery prior to conditional certification is often unnecessary, particularly where the facts already demonstrate that opt-in plaintiffs have sufficiently similar claims.[19]  Yet, even under the more lenient standard, employers may defeat conditional certification by emphasizing the lack of evidence of other similarly situated employees.[20] A named plaintiff’s conclusory arguments regarding other, similarly situated employees, without concrete evidence that other employees wish to join a proposed FLSA collective, may  not survive an opposition to a motion for conditional certification even under the most lenient of standards.[21]

Suggestions for Opposing a Motion for Conditional Certification or Motion to Authorize Notice

In opposing a plaintiff/employee’s motion for conditional certification or a motion to authorize notice under the Swales standard, employers should cite factors such as:  a lack of similar job descriptions or similar hours worked among potential collective members, lack of documentation relating to other potential collective members including information indicating similar working conditions, lack of evidence indicating potential consent to join the lawsuit, and lack of employee and other records evidencing a “similarly situated” status. While other courts of appeals have yet to adopt the Fifth Circuit’s more rigorous standard, counsel should not accept conditional certification under the FLSA as a foregone conclusion, particularly if such evidence is lacking.

[1] Case No. SA-21-CA-00423-XR, ECF No. 38 (W.D. Tex. Oct. 3, 2022).

[2] Swales v. KLLM Transport Services, LLC, 985 F.3d 430 (5th Cir. 2021).

[3] Id. at 443.

[4] Id. at 441.

[5] Id. at 443 (emphasis added).

[6] Id.

[7] See, e.g., Marquis v. Sadeghian, No. 4:19-cv-626, 2021 WL 6621686, at **2–3 (E.D. Tex. Dec. 30, 2021).

[8] Berridge v. Pediatric Home Healthcare, LLC, No. SA-20-CV-01025, 2021 WL 4083407, at *1 (W.D. Tex. Sept. 8, 2021) (internal citations and quotations omitted).

[9] Case No. SA-21-CA-00423-XR, ECF No. 38, at 2.

[10] Id. at 3–4.

[11] Id. at 3.

[12] Id. at 3–5.

[13] Id. at 5 (internal citations and quotation marks omitted).

[14] Id. (quoting Swales, 985 F.3d at 436); see also Hoffman-La Roche, Inc. v. Sperling, 493 U.S. 165, 174 (1989) (noting courts “must be scrupulous with respect to judicial neutrality” and “take care to avoid even the appearance of judicial endorsement of the merits of [an] action”).

[15] Id.

[16] See Swales, 985 F.3d at 436–43; Berridge, 2021 WL 4083407, at **2–3 (declining to certify collective where, despite the fact that the case had “been pending for a year, [the plaintiff] had yet to identify another potential opt-in plaintiff who s[ought] to join th[e] lawsuit” and did not submit any declarations or affidavits on their behalf) (internal citations and quotation marks omitted); Marquis, 2021 WL 6621686, at *6 (noting that courts have declined to certify collective actions based upon general statements that proposed members are “similarly situated” and that plaintiffs’ motion for notice failed because it did put forth evidence showing that their day-to-day job responsibilities were the same).

[17]  However, the Sixth Circuit has recently promulgated a third standard, which appears to strike a balance between the Fifth Circuit’s standard articulated within Swales and the “modest” two-step certification process still used by a majority of courts. See Clark v. A&L Homecare & Training Ctr., LLC, _F.4th_, No. 22-3101/3102, 2023 WL 3559657, at **3–4 (6th Cir. May 19, 2023) (holding that lead plaintiffs must demonstrate a “strong likelihood” that other employees are similarly situated to them, which is part of how courts consider preliminary injunction motions, before notice can issue). In so holding, the Sixth Circuit criticized Swales, noting that “[a]s a practical matter, [it did not] see how a district court [could] conclusively make similarly situated determinations as to employees who are in no way present in the case.” Id. at *3. Nonetheless, courts should still not utilize the traditional two-step certification process because, as the Fifth Circuit explained within Swales, it created the risk of solicitation of claims. Id. at *4.

[18] See, e.g., Gillespie v. Cracker Barrel Old Country Store, Inc., No. 21-00940-PHX-DJH, 2023 WL 2734459, at *7 (D. Ariz. Mar. 31, 2023) (declining to apply Swales and “adher[ing] to the binding Ninth Circuit approach”); Murphy v. Labor Source, LLC, No. 19-cv-1929, 2022 WL 378142, at *11 n. 4 (D. Minn. Feb. 8, 2022) (“the Court finds that the [Swales] decision undermines the discretion afforded to district [c]ourt[s] in implementing section 216(b)” of the FLSA); McCoy v. Elkhart Prods. Corp., No. 5:20-cv-05176, 2021 WL 510626, at *2 (W.D. Ark. Feb. 11, 2021) (“The Court will follow the historical, two-stage approach, which has proven to be an efficient means of resolution of this issue.”); Buffington v. Ovintiv USA, Inc., No. 20-cv-02472, 2021 WL 3021464, at *2 (D. Colo. Jul. 16, 2021) (declining to adopt Swales without direction from the Tenth Circuit); see also New Albertsons, Inc., No. 21-2577, 2021 WL 4028428, at *2 (7th Cir. Sept. 1, 2021) (noting that conditional certification and authorization of notice “is a preliminary, non-final step that does not adjudicate any party’s rights[,]” and that the merits of the parties’ claims can be litigated after the first step).

[19] See, e.g., Amoko v. N&C Claims Servs., Inc., 577 F. Supp.3d 408, 414–15 (D.S.C. 2021) (noting Fourth Circuit had yet to adopt Swales and that conditional certification was appropriate where, unlike in Swales, significant discovery was unnecessary to determine whether potential plaintiffs had sufficiently similar claims); Bah v. Enterprise Rent-a-Car Co. of Bos., LLC, 560 F. Supp.3d 366, 372–73 (D. Mass. 2021) (declining to allow limited discovery before deciding motion for conditional certification as the merits of plaintiff’s claims were “closely intertwined with the merits of the possible class action”).

[20] See, e.g., Kubiak v. S.W. Cowboy, Inc., No. 3:12-cv-1306, 2014 WL 2625181, at *9 (M.D. Fla. June 12, 2014) (“[A] plaintiff must proffer a minimum quantum of evidence to warrant the creation of a collective action. The mere anticipation that others may want to join the lawsuit or the mere presence of a uniformly adverse compensation policy is insufficient by itself.”); see also McCoy, 2021 WL 510626, at *2 (while the burden for conditional certification under the first step of the traditional approach is relatively low, “some identifiable facts or legal nexus must bind the claims so that hearing the cases together promotes judicial efficiency”) (citations omitted); Murphy, 2022 WL 378142, at *11 n. 4 (“although the burden of proof is low at the first stage of the two-stage approach, it is not non-existent”).

[21] See, e.g., Ting You v. Grand China Buffet & Grill, Inc., No. 17-42, 2018 WL 1352174, at *4 (N.D. W.Va. Mar. 15, 2018) (denying motion for certification where plaintiff “[d]espite the opportunity to provide further support for his position . . . , failed to submit affidavits from other current or former restaurant employees, or even to provide their full names”); Saxton v. Title Max of Ala., Inc., 431 F.Supp.2d 1185, 1188 (N.D. Ala. 2006) (“The absence of Plaintiffs’ evidence as to persons’ having a desire to opt-in to this case, makes the . . . inquiry . . . difficult if not impracticable to undertake”); Trinh v. JP Morgan Chase & Co., No. 07-1666, 2008 WL 1860161, at *4 n. 2 (S.D. Cal. Apr. 22, 2008) (denying conditional certification where “Plaintiffs’ only allegation that Defendants engaged in a wrongful policy is that Defendants uniformly classified Plaintiffs and other loan officers as exempt”).

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