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Date: 05-23-2023

Case Style:

Brooke Clark v. A&L Homecare and Training Center, LLC, et al.

Case Number: 1:20-cv-0757

Judge: Matthew W. McFarland

Court: United States District Court for the Southern District of Ohio (Hamilton County)

Plaintiff's Attorney:

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Defendant's Attorney: M. Scott McIntyre

Description: Cincinnati, Ohio employment law lawyers represented Plaintiffs who sued Defendant on a Fair Labor Standards Act (FLSA) violation theory.

In September 2020, the named plaintiffs-a number of former "home-health aides"- brought this suit against A&L Homecare &Training, LLC and its owners (collectively, "A&L") under the FLSA and Ohio law. The plaintiffs alleged that A&L had paid them less than the correct overtime rate and under-reimbursed their vehicle expenses, thereby reducing their pay below the federal and state minimum wages.
Clark v. A&L Homecare & Training Ctr. (6th Cir. 2023)

The FLSA mandates that employers pay a federal minimum wage and overtime to certain types of employees. 29 U.S.C. §§ 206(a), 207(a). Employees can sue for alleged violations of those mandates on "behalf of . . . themselves and other employees similarly situated." Id. § 216(b). But "[n]o employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought." Id. Thus-assuming they are "similarly situated"-other employees become parties to an FLSA suit only if they affirmatively choose to do so.

The issue in this case concerns the manner in which other employees come to learn about the existence of an FLSA suit itself. Normally plaintiffs come to the courts, rather than vice versa. See Osborne v. Bank of United States, 22 U.S. 738, 819 (1824) (The "judicial power . . . is capable of acting only when the subject is submitted to it by a party who asserts his rights in the form prescribed by law."). But in Hoffman-La Roche v. Sperling, 493 U.S. 165 (1989), a majority of the Court discerned in § 216(b) an implied judicial power, "in appropriate cases," to "facilitat[e] notice" of FLSA suits "to potential plaintiffs." Id. at 169. What the Court meant by "potential" plaintiffs, for purposes of facilitating notice of an FLSA suit, the Court did not say; the Court merely "confirm[ed] the existence of the trial court's discretion, not the details of its exercise." Id. at 170.

There matters have stood for the ensuing 30-odd years, leaving the district courts, on that question, with little guidance that one can call law. The question, more specifically, concerns the showing of similarity that the plaintiffs must make for the district court to send notice of an FLSA suit to other employees as "potential plaintiffs." Neither the statute, nor Hoffman-La Roche, nor (so far as we can tell) any traditional practice at common law or equity says much about what the requisite showing should be. Yet the decision to send notice of an FLSA suit to other employees is often a dispositive one, in the sense of forcing a defendant to settle-because the issuance of notice can easily expand the plaintiffs' ranks a hundredfold.

In the meantime-whether by independent deliberation or by "anchoring bias" (meaning the tendency of persons to rely heavily on the first piece of information they receive when making decisions, see, e.g., Am. Psychol. Ass'n, Dictionary of Psychology, Primacy Anchoring Bias, available at district courts have adopted a two-step approach first described in a 1987 decision from a district court in New Jersey. See Lusardi v. Xerox Corp., 118 F.R.D. 351, 361 (D.N.J. 1987). In the first step-called "conditional certification"-a district court may facilitate notice of an FLSA suit to other employees upon a "modest factual showing" that they are "similarly situated" to the original plaintiffs. See, e.g., Pritchard v. Dent Wizard Int'l Corp., 210 F.R.D. 591, 596 (S.D. Ohio 2002). That standard is a "fairly lenient" one. See, e.g., Knecht v. C &W Facility Servs., Inc., 534 F.Supp.3d 870, 873 (S.D. Ohio 2021). Thereafter, when merits discovery is complete- assuming the case has not settled in the meantime, which it usually has-the court takes a closer look at whether those "other employees" are, in fact, similarly situated to the original plaintiffs. See, e.g., Smith v. Lowe's Home Ctrs., Inc., 236 F.R.D. 354, 357 (S.D. Ohio 2006). To the extent
the court concludes they are similarly situated, it then grants "final certification" for the case to proceed to decision as a collective action. Id.

* * *

In September 2020, the named plaintiffs-a number of former "home-health aides"- brought this suit against A&L Homecare &Training, LLC and its owners (collectively, "A&L") under the FLSA and Ohio law. The plaintiffs alleged that A&L had paid them less than the correct overtime rate and under-reimbursed their vehicle expenses, thereby reducing their pay below the federal and state minimum wages.

The plaintiffs thereafter moved for the district court to facilitate notice of their action to three groups of other employees who had worked for A&L. The court adopted the two-step "certification" procedure described above, applied the usual "fairly lenient" standard, and "conditionally certified" two of the three groups as "collectives" for purposes of receiving notice of the suit. The court further held, however, that it would not facilitate notice to employees who had left A&L more than two years before (which, in the court's view, was the applicable limitations period here) or who had signed a "valid arbitration agreement" with A&L.

The district court also observed that our court had not yet addressed the merits of the Lusardi two-step "certification" approach, and that the Fifth Circuit had recently rejected it. See Swales v. KLLM Transport Services, L.L.C., 985 F.3d 430, 434 (5th Cir. 2021). Nor, the district court observed, had our court addressed the effect of an alleged arbitration agreement on an employee's ability to receive notice. The court therefore certified its order for interlocutory review under 28 U.S.C. § 1292(b). We granted permission for A&L to appeal and for plaintiffs to cross-appeal that order.


We review for an abuse of discretion a district court's decision whether to send notice of an FLSA suit to "other employees" of the defendant. Monroe v. FTS USA, LLC, 860 F.3d 389, 401 (6th Cir. 2017). In doing so, we review questions of law de novo. See, e.g., Howe v. City of Akron, 723 F.3d 651, 658 (6th Cir. 2013).



The principal question here is one of law. The plaintiffs argue we should adopt the Lusardi approach and its lenient standard for "conditional certification" for purposes of sending notice of an FLSA suit to other employees. A&L counters that we should adopt the Fifth Circuit's approach-under which, as A&L understands it, the district court must make a "final" determination of substantial similarity before facilitating notice of the suit to other employees. A&L Br. at 10.

We adopt neither of those approaches. As an initial matter, we reject Lusardi's characterization of the notice determination as a "certification," conditional or otherwise. Certification is a term borrowed from Civil Rule 23, which governs whether a case may proceed as a class action. And class actions under Rule 23 "are fundamentally different from collective actions under the FLSA." Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 74 (2013). Specifically, unlike a Rule 23 class action, an FLSA collective action is not representative- meaning that "all plaintiffs in an FLSA action must affirmatively choose to become parties by opting into the collective action." Canaday v. Anthem Companies, Inc., 9 F.4th 392, 402 (6th Cir. 2021) (cleaned up). Thus-in contrast to members of a Rule 23 class-similarly situated employees who join an FLSA action become parties with "the same status in relation to the claims of the lawsuit as do the named plaintiffs." Id. at 402-03 (cleaned up). In sum, under Rule 23, the district court certifies the action itself as a class action; whereas in an FLSA action, under § 216(b), the district court simply adds parties to the suit. Hence the term "certification" has no place in FLSA actions. See, e.g., Fischer v. Federal Express Corp., 42 F.4th 366, 376 (3d Cir. 2022).

The issue is not one of semantics. Instead, courts have mistakenly assumed that "conditional certification" actually changes the character of the case. For example, any number of courts have asserted that, after conditional certification, the case then "proceeds" as a "collective" or even a "representative" action. See, e.g., Brittmon v. Upreach, LLC, 285 F.Supp.3d 1033, 1042 (S.D. Ohio 2018); Mickles v. Country Club Inc., 887 F.3d 1270, 1276 (11th Cir. 2018). Those assertions are mistaken: "other employees" become parties to an FLSA suit (as opposed to mere recipients of notice) only after they opt in and the district court


determines-not conditionally, but conclusively-that each of them is in fact "similarly situated" to the original plaintiffs. 29 U.S.C. § 216(b); Canaday, 9 F.4th at 403. True, in Hoffman-LaRoche, the Supreme Court indicated that a district court may permit discovery for purposes of those "similarly situated" determinations. 493 U.S. at 170. But-whether called "conditional certification" or otherwise-the notice determination has zero effect on the character of the underlying suit. On that point the Supreme Court has been clear. See Genesis Healthcare, 569 U.S. at 75 ("The sole consequence of conditional certification is the sending of court-approved written notice to employees.").

We turn to the showing necessary for the district court to facilitate notice to "other employees." In Hoffman-LaRoche, as noted above, the Supreme Court used the term "potential plaintiffs" as an undefined shorthand for persons to whom a district court may facilitate notice of the suit. 493 U.S. at 169. In Swales, the Fifth Circuit held that court-approved notice may be sent only to employees "who are actually similar to the named plaintiffs"-meaning, apparently, that the district court must find by a preponderance of the evidence that those employees are similarly situated to the original plaintiffs. 985 F.3d at 434. But "potential plaintiffs" can just as easily mean employees who-based on a lesser showing of likelihood-might be similarly situated to the original plaintiffs, and who thus might be eligible to join the suit. The facts of Hoffman-LaRoche support that reading: there, the Supreme Court affirmed the district court's issuance of notice after the district court had expressly held that "notice to absent class members need not await a conclusive finding of 'similar situations.'" Sperling v. HOffman-LaRoche, 118 F.R.D. 392, 406 (D.N.J. 1988).

Nor, as a practical matter, do we see how a district court can conclusively make "similarly situated" determinations as to employees who are in no way present in the case. Whether other employees are similarly situated for the purpose of joining an FLSA suit typically depends on whether they performed the same tasks and were subject to the same policies-as to both timekeeping and compensation-as the original plaintiffs were. See, e.g., Pierce v. Wyndam Resorts, Inc., 922 F.3d 741, 745-46 (6th Cir. 2019). Whether other employees are subject to individualized defenses-such as an employee's agreement to arbitrate a claim-can also affect whether particular employees are similarly situated for purposes of sending notice.


See id. at 745. All these issues tend to be factbound, meaning they depend on the specific facts pertaining to those employees. And as to all these issues, the "other employees" themselves will usually have knowledge-sometimes unique knowledge-of the relevant facts. For example, an employer's records might show that an employee worked less than 40 hours per week during a certain period; the employee might be ready to testify that she worked more. Or an employer's records might show that another employee did not perform certain tasks; yet the employee knows that he performed them every day. Thus, where the employer's records show dissimilarity, the other employees themselves might have evidence of similarity; or the converse might be true. Defendants depose plaintiffs in civil litigation for good reasons: among them, plaintiffs often know relevant facts (sometimes helpful to the plaintiff's case, sometimes harmful) that the defendant does not. That is as likely to be true about "similarly situated" determinations as about any other factbound determination. We therefore disagree that a district court can or should determine-in absentia-whether other employees are "actually" similarly situated to the original plaintiffs.

But neither do we think a district court should facilitate notice upon merely a "modest showing" or under a "lenient standard" of similarity. The Supreme Court made clear in Hoffman-LaRoche that the court's facilitation of notice must not "in form or function" resemble "the solicitation of claims." 493 U.S. at 174. And notice sent to employees who are not, in fact, eligible to join the suit amounts to solicitation of those employees to bring suits of their own. See Swales, 985 F.3d at 434. To the extent practicable, therefore, court-approved notice of the suit should be sent only to employees who are in fact similarly situated.

A district court's determination to facilitate notice in an FLSA suit is analogous to a court's decision whether to grant a preliminary injunction. Both decisions are provisional, in the sense that the court renders a final decision on the underlying issue (whether employees are "similarly situated" here, success on the merits there) only after the record for that issue is fully developed; yet both decisions have immediate consequences for the parties. Three of the four prongs of the preliminary-injunction standard-namely, the ones concerning "irreparable injury," "substantial harm to others," and the "public interest," see, e.g., Memphis A. Philip Randolph Institute v. Hargett, 2 F.4th 548, 554 (6th Cir. 2021)-are inapposite here. What the


notice determination undisputedly shares in common with a preliminary-injunction decision, rather, is the requirement that the movant demonstrate to a certain degree of probability that she will prevail on the underlying issue when the court renders its final decision.

We adopt that part of the preliminary-injunction standard here; and we hold that, for a district court to facilitate notice of an FLSA suit to other employees, the plaintiffs must show a "strong likelihood" that those employees are similarly situated to the plaintiffs themselves. See, e.g., id. That standard requires a showing greater than the one necessary to create a genuine issue of fact, but less than the one necessary to show a preponderance. The strong-likelihood standard is familiar to the district courts; it would confine the issuance of court-approved notice, to the extent practicable, to employees who are in fact similarly situated; and it would strike the same balance that courts have long struck in analogous circumstances.

In applying this standard, district courts should expedite their decision to the extent practicable. The limitations period for FLSA claims typically is two years. 29 U.S.C. § 255(a). If the plaintiffs in an FLSA suit move for court-approved notice to other employees, the court should waste no time in adjudicating the motion. To that end, a district court may promptly initiate discovery relevant to the motion, including if necessary by "court order." Fed.R.Civ.P. 26(d)(1).
Clark v. A&L Homecare & Training Ctr. (6th Cir. 2023)

Outcome: In sum, we will vacate the district court's notice determination and remand for the court to redetermine that issue under the strong-likelihood standard.

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