Generally speaking, plaintiffs in the Third Circuit seeking “conditional certification” of an FLSA collective action are merely required to “make a ‘modest factual showing’ — something beyond mere speculation — to demonstrate a factual nexus between the manner in which the employer’s alleged policy affected him or her and the manner in which it affected the proposed collective action members.” Halle v. West Penn Allegheny Health System Inc., 842 F.3d 215, 224 (3d Cir. 2016) (quoting Zavala v. Wal Mart Stores Inc., 691 F.3d 527, 536 n. 4 (3d Cir. 2012)). Notwithstanding, FLSA defendants often argue that a “heightened” or “intermediate” standard of review should apply if the discovery was conducted in advance of the plaintiff’s conditional certification motion. The Third Circuit Court of Appeals has never endorsed such an approach, and the district courts have issued mixed decisions regarding both the general availability of the purported heightened/intermediate standard and the amount of discovery necessary to trigger the purported standard. For a recent example of an opinion on which a district court refuses to apply the heightened/intermediate standard, you should read Western District of Pennsylvania Chief Magistrate Judge Cynthia Reed Eddy’s opinion in Fitch v. Giant Eagle Inc., 2020 U.S. Dist. LEXIS 201418 (W.D. Pa. Oct. 28, 2020). Unfortunately, I am not able to find an internet link for this opinion, so you will need to get it off LEXIS. Anyway, Judge Eddy provides a thoughtful explanation for the very limited circumstances in which the purported heightened/intermediate standard might apply. Then, she refuses to apply the standard notwithstanding the completion of some depositions conducted during the pre-conditional certification discovery period.
Pennsylvania Overtime Attorney Alert: Western District of Pennsylvania Magistrate Judge Refuses to Apply “Heightened Burden of Proof” to Flsa Conditional Certification Motion