Recent Shifts in FLSA Collective Actions: What Florida Employers Need to Know

This article is from the Florida Bar Journal: https://ow.ly/17NE50WFBNA

Why FLSA “collectives” are different

The FLSA—passed in 1938, decades before modern Rule 23—lets employees pursue wage and overtime claims “on behalf of themselves and others similarly situated” under 29 U.S.C. § 216(b). Unlike a Rule 23 class action (where you’re in unless you opt out), an FLSA collective requires each person to opt in by filing a written consent. That opt-in mechanism is why courts supervise case-originated notice to potential plaintiffs.

The long-dominant Lusardi “two-step”

As FLSA filings surged—especially in Florida federal courts—most judges managed collectives using Lusardi v. Xerox’s two-step framework:

1. Step One (Conditional Certification): Early in the case, courts applied a “fairly lenient” standard and often granted notice based on pleadings and a few declarations—without assessing the merits. Notices went out, opt-ins joined (typically ~15–30%), and discovery followed.

2. Step Two (Decertification/Final Certification): After discovery, the court rigorously decided whether the named plaintiffs and opt-ins were actually “similarly situated.” If not, the opt-ins were dismissed without prejudice.

Two practical effects flowed from this lenient first step: (a) lots of notices compared to other workplace actions, and (b) many settlements after conditional certification but before any final similarity decision.

The recent disruption: Swales and Clark

Fifth Circuit: Swales v. KLLM Transport (2021)

The Fifth Circuit rejected the Lusardi model outright. Its core moves:

• No “conditional certification” in the statute. The FLSA talks about adding parties, not certifying anything.

• Decide similarity first. Courts should identify the facts and legal issues that matter to “similarly situated,” allow targeted preliminary discovery, and then—before notice—decide whether similarity actually exists, considering all probative evidence (even if it overlaps with merits).

Bottom line: Notice should not go to people who ultimately aren’t eligible to join; courts should avoid turning notice into solicitation.

Sixth Circuit: Clark v. A&L Homecare (2023)

The Sixth Circuit also rejected Lusardi—but didn’t adopt Swales wholesale. Instead, it installed a preliminary-injunction-style standard:

• Plaintiffs must show a “strong likelihood” that the employees to be noticed are similarly situated—more than raising a genuine issue of fact, less than a preponderance.

• Rationale: Sending notice materially affects litigation dynamics (and can pressure settlement), yet it’s not a final merits ruling—so a middle-ground evidentiary threshold is warranted.

  
  

What about Florida and the Eleventh Circuit?

The Eleventh Circuit (which includes Florida) has endorsed Lusardi as a helpful management tool, but has also said it is not required by the FLSA. That nuance matters. District judges in Florida can still use Lusardi—but they are not bound to do so. With Swales and Clark on the books, defendants now have credible, appellate-level arguments to ask courts for a more rigorous, evidence-sensitive approach at the notice stage.

And we’re already seeing Eleventh Circuit district courts outside Florida experiment:

• Green v. Atlas Senior Living (S.D. Ga. 2022): After several months of early discovery, the court declined to apply the rote lenient standard, reasoning that efficiency and the risk of solicitation justified considering developed evidence before sending notice. Conditional certification denied.

• Broome v. CRST Malone (N.D. Ala. 2022): The court found Swales persuasive, ordered limited discovery, and then sent tailored notice only to a subset who truly appeared similarly situated.

Those opinions arm Florida defense counsel with practical blueprints to propose targeted discovery and a substantiated similarity threshold before notice.

Practical playbook for Florida employers & defense counsel

1. Push for early, targeted discovery limited to “similarly situated.” In Rule 26(f) reports and scheduling proposals, identify the discrete facts that make or break similarity—job duties, pay practices, manager discretion, exemptions, arbitration agreements, waiver issues, etc.—and propose short, focused discovery to resolve them before any notice.

2. Frame the ask around judicial efficiency and anti-solicitation principles. Emphasize that premature notice risks recruiting individuals who are not eligible and inflates costs on both sides. Cite Swales/Clark (persuasive authority) and Eleventh Circuit language that Lusardi is optional, not mandatory.

3. Invite the court to consider probative “merits-overlap” now. Similarity often overlaps with merits (e.g., employee vs. contractor under the economic-realities test). Argue that examining that overlap now is more efficient than sending broad notice and sorting it out later.

4. Tailor the group—and the notice—carefully. If the record supports only certain locations, shifts, positions, supervisors, or time windows, propose narrowed notice that matches the evidence rather than all-hands mailings.

5. Leverage arbitration and individualized defenses early. Agreements to arbitrate, individualized damages methodologies, statute-of-limitations variations, and exemption nuances can defeat similarity. Get those documents and facts on the table before the court decides whether to send notice.

6. Build a record of differences, not just policies. Plaintiffs often point to uniform policies. Counter with how the policy actually operates across sites or managers and how discretion, job tasks, or off-the-clock practices vary in reality.

   
   

Key takeaways

• The landscape is shifting. The Fifth and Sixth Circuits have curtailed the once-automatic path to broad notice.

• Florida courts have flexibility. Lusardi remains familiar, but not compulsory; there’s room to adopt Swales-like or Clark-like rigor at Step One.

• Defense strategy matters early. The best time to win (or dramatically narrow) a collective is before notice—through targeted discovery and a clear, evidence-based record on (dis)similarity.

• Expect more tailored notices—or denials. Where differences dominate, courts are increasingly comfortable denying or trimming notice to match the evidence.