A little over two years ago, the U.S. Court of Appeals for the Fifth Circuit became the first federal appellate court in the country to reject the widespread and longstanding two-step approach of first “conditionally” certifying Fair Labor Standards Act (“FLSA”) collective actions under a very lenient, plaintiff-friendly standard, followed by applying more rigorous scrutiny after the close of discovery at the “decertification” or “final certification” stage.  As we discussed here, the Fifth Circuit concluded in Swales v. KLLM Transport Services, LLC that the FLSA requires not two steps, but instead a single step that carefully examines whether the group of workers at issue is “similarly situated” before a court authorizes any notices to potential opt-in plaintiffs.

By and large, district courts outside the Fifth Circuit have declined to follow Swales, either disagreeing expressly with the decision’s reasoning or concluding that any movement away from the two-step approach should come from the appellate courts.  In what may be the first district court ruling bucking that trend, a federal judge in the Eastern District of Virginia has recently chosen to follow Swales.

In Mathews v. USA Today Sports Media Group, LLC, Judge T.S. Ellis, III considered the pros and cons or both approaches and concluded that “the Fifth Circuit’s approach is the better one.”  The court elected to “authorize limited discovery” tailored “to aid in determining whether plaintiff is similarly situated to her proposed collective.”  This ruling is especially interesting because several other district judges in the Fourth Circuit, including within Virginia, have previously rejected Swales.

It remains to be seen whether this new decision will stand alone or, instead, embolden other district judges to consider the Fifth Circuit’s one-step approach.  It would not be surprising to see the matter head to the Fourth Circuit in an interlocutory posture.  In the meantime, the Sixth Circuit heard oral argument on this same issue on December 7, 2022, in Clark v. A&L Home Care and Training Center, LLC (No. 21-3101), and we await that court’s decision.

We will keep an eye on these developments.  The standard for certifying an FLSA collective action could end up in the Supreme Court in the not-too-distant future.