Abstract
Congress enacted the Fair Labor Standards Act (FLSA) to provide relief to low-income workers at risk of being taken advantage of by their larger, more sophisticated employer. The FLSA provides a collective action mechanism that allows similarly situated workers to bring suits together against a common employer outside the strictures of Rule 23 of the Federal Rules of Civil Procedure. To ensure all potentially similarly situated workers have sufficient notice of the suit in order to affirmatively opt-in, the Supreme Court authorized the district courts to facilitate notice to all “potential plaintiffs.”
The circuits are currently split regarding the standard a plaintiff must meet before a court may deem one a “potential plaintiff” that is sufficiently similarly situated and therefore entitled to court authorized notice. Traditionally, district courts apply a two-step procedure using a fairly lenient burden allowing workers to opt-in before a final determination of similarity is made conclusively. Recently, the Fifth and Sixth Circuits have rejected this standard in favor of their own, citing concerns that its leniency works to improperly solicit claims and places an unfair burden upon defendant-employers.1 This Comment explores the modern application of the collective action mechanism and argues that those concerns are overstated, and that newly emerging heightened standards threaten to undermine the remedial purpose of the FLSA.
Recommended Citation
Anthony DeCaprio,
Unleash the “Potential” of the Collective Action Mechanism in FLSA Suits,
75
Cath. U. L. Rev.
341
(2025).
Available at:
https://scholarship.law.edu/lawreview/vol75/iss2/9
