“Conditional” Class Certification Under the FLSA: Violation of Rule 23 and the Rules Enabling Act

Authors

• Markham R. Leventhal, Carlton Fields, P.A.

Abstract

So-called “collective” actions under § 216(b) of the Fair Labor Standards Act (the “FLSA”) are nothing more than “opt-in” class actions. This Article exposes the unjustifiable failure to apply Rule 23 of the Federal Rules of Civil Procedure to these actions, the erroneous conclusion by several circuit courts that these actions are not “representative” actions but rather some kind of “mass joinder,” and the resulting violation of the Rules Enabling Act when courts allow these “collective” actions to proceed without satisfying the requirements of Rules 23(a) and (b). The author explains why the vast majority of federal courts, using an unjustifiable “two-step” procedure, have wrongly failed to apply Rule 23, instead routinely allowing named plaintiffs to form opt-in class actions by sending notice to and inviting hundreds or thousands of individuals to join their action. This two-step procedure is unauthorized by any statute, Federal Rule of Civil Procedure, or Supreme Court precedent. More recently, the Fifth Circuit has jettisoned the two-step approach, while the Sixth and Seventh Circuits have adopted their own entirely different set of standards for determining when notice should be allowed under § 216(b). The result is a four-way split in the circuits. Given the inconsistent, entrenched, and constantly evolving legal standards being applied among the circuits, the author concludes that only the U.S. Supreme Court will be able to correct the lack of uniformity and widespread failure to follow the Federal Rules of Civil Procedure in these so-called “collective” or “opt-in” class actions

Recommended Citation

Markham R. Leventhal, “Conditional” Class Certification Under the FLSA: Violation of Rule 23 and the Rules Enabling Act, 80 U. Mia. L. Rev. 763 (2026).
Available at: https://repository.law.miami.edu/umlr/vol80/iss3/8