FLSA “Conditional Certification” in the Third Circuit and Beyond

As many wage and hour lawyers know, FLSA “collective actions” are very different from “class actions” brought under Federal Civil Rule 23. For example, the “certification” of FLSA collective actions unfolds pursuant to a multi-step process: At or near the outset of litigation, the plaintiff moves for “conditional certification” of the proposed FLSA collective. If the judge grants this motion, then all current/former employees eligible to join the lawsuit are sent forms describing the legal claims/defenses and inviting them to join the lawsuit. After this “opt-in” process is complete, the FLSA claim goes forward on behalf of a “collective” comprised of those employees who affirmatively joined the lawsuit. Discovery ensues.

Next, after the close of discovery, either (i) the plaintiffs move for “final certification” of the collective or (ii) the defendant moves to “decertify” the collective. Either way, the judge must decide whether the employees are “similarly situated” enough to resolve their shared FLSA claim via a single, collective trial. If the judge denies final certification, then the collective is “decertified” and all the employees who previously joined the lawsuit are dismissed without prejudice to file individual lawsuits.

In recent years, significant disagreement has emerged regarding the legal standard judges should apply in deciding whether to conditionally certify an FLSA collective and notify employees of their right to join the lawsuit. Faced with a purported “circuit-split,” many observers – myself included – have expected the Supreme Court to take up the issue. But that has not come to pass.

In this paper, I first discuss the FLSA “conditional certification” standard endorsed by the Third Circuit Court of Appeals. As indicated, the standard is well-established and relatively employee-friendly. See Section A. Next, I summarize the purportedly divergent standards that have emerged from other federal circuits in recent years. See Section B. Finally, I provide two competing viewpoints regarding the need for the Supreme Court to establish a uniform, nationwide standard for the conditional certification of FLSA lawsuits.

A. FLSA “Conditional Certification” in the Third Circuit.

1. Conditional Certification Generally.

“Under the ‘collective action’ mechanism, an employee alleging an FLSA violation may bring an action on ‘behalf of himself . . . and other employees similarly situated,’ subject to the requirement that ‘[n]o employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.” Symczyk v. Genesis Healthcare Corporation, 656 F.3d 189, 192 (3d Cir. 2011) (quoting 29 U.S.C. § 216(b)).

In Halle v. West Penn Allegheny Health System Inc., 842 F.3d 215 (3d Cir. 2016), the Third Circuit described some of the benefits and efficiencies obtained by the FLSA’s collective action mechanism:

FLSA [Section 216(b)] provides a vehicle for managing claims of multiple employees against a single employer. By permitting employees to proceed collectively, the FLSA provides employees the advantages of pooling resources and lowering individual costs so that those with relatively small claims may pursue relief where individual litigation might otherwise be cost-prohibitive. It also yields efficiencies for the judicial system through resolution in one proceeding of common issues arising from the same allegedly wrongful activity affecting numerous individuals.”

842 F.3d at 223; accord Hoffman-La Roche Inc. v. Sperling, 493 U.S. 165, 170 (1989) (collective actions provide workers with “the advantage of lower individual costs to vindicate rights by the pooling of resources”); Symczyk, 656 F.3d at 200 (collective actions enable parties “to avoid multiple lawsuit”). These advantages, however, “depend[] on employees receiving accurate and timely notice . . . so that they can make informed decisions about whether to participate.” Hoffman-LaRoche, 493 U.S. at 170. And district courts have a “managerial responsibility . . . to assure that the task is accomplished in an efficient and proper way.” Id. at 170-71.

Conditional certification merely facilitates notice to employees. As the Third Circuit has emphasized, conditional certification has nothing to do with “class certification” in the traditional sense: “the certification we refer to here is only the district court’s exercise of [its] discretionary power, upheld in Hoffman-LaRoche, to facilitate notice to potential class members, and is neither necessary nor sufficient for the existence of a representative action under FLSA.” Symczyk, 656 F.3d at 194 (internal quotations omitted).[1] As such, “the inquiry at the first step of the certification process is limited to whether “‘similarly situated [individuals] do in fact exist.’” Claiborne v. FedEx Ground Package System, 2019 WL 4750141, 2019 U.S. Dist. LEXIS 168141, 10 (W.D. Pa. Sep. 30, 2019) (quoting Zavala, 691 F.3d at 536 n.4).

At the conditional certification stage, judges and lawyers should remain mindful that the filing of an FLSA lawsuit – unlike the filing of a Rule 23 class action lawsuit – does not toll the running of the statute of limitations against the claims of current/former employees who are eligible to join the FLSA collective. As such, FLSA conditional certification motions should be filed and decided as quickly as possible. As former WDPA Judge Donetta Ambrose observed, “‘time [is] of the essence’ for purposes of FLSA notice ‘[b]ecause the . . . statute of limitations is not tolled [until] a potential plaintiff opts in[to]’ the proposed collective action.” Taylor v. Pittsburgh Mercy Health System, Inc., 2009 WL 1324045, 2009 U.S. Dist. LEXIS 40080, *2 (W.D. Pa. May 11, 2009); see also Altenbach v. The Lube Center, Inc., 2009 WL 3818750, 2009 U.S. Dist. LEXIS 106131, *2-3 (M.D. Pa. Nov. 13, 2009) (“district courts have allowed the conditional certification of a class of putative plaintiffs before significant discovery takes place because the statute of limitations continues to run on unnamed class members’ claims until they opt into the collective action”).

2. The “Lenient” Conditional Certification Standard.

Because conditional certification is not akin to a true “certification,” the burden is relatively light. As former MDPA Judge John E. Jones cogently observed:

The burden in this preliminary certification [stage] is light because the risk of error is insignificant: should further discovery reveal that the named positions, or corresponding claims, are not substantially similar the defendants will challenge the certification and the court will have the opportunity to deny final certification.

Craig v. Rite Aid Corp., 2009 WL 4723286, 2009 U.S. Dist. LEXIS 114785, *9 (M.D. Pa. Dec. 9, 2009); see also Matthews v. Philadelphia Corporation for the Aging, 2023 WL 3868359, 2023 U.S. Dist. LEXIS 98894, *5 (E.D. Pa. June 7, 2023) (plaintiffs’ burden at the conditional certification stage “is ‘extremely lenient’ because the ‘sole consequence of conditional certification is the dissemination of court-approved notice to potential collective action members’”); Gauzza v. Prospect Medical Holdings, Inc., 2018 U.S. Dist. LEXIS 184306, *4 (E.D. Pa. Oct. 26, 2018) (standard is “extremely lenient”); Marrero v. KRA Corp., 2010 WL 687123, 2010 U.S. Dist. LEXIS 15850, *2 (E.D. Pa. Feb. 23, 2010) (same).

In Symczyk v. Genesis Healthcare Corporation, 656 F.3d 189 (3d Cir. 2011), the Third Circuit clarified that conditional certification motions are dictated by a “modest factual showing” standard:

Under the “modest factual showing” standard, a plaintiff must produce some evidence, “beyond pure speculation,” of a factual nexus between the manner in which the employer's alleged policy affected her and the manner in which it affected other employees. We believe the “modest factual showing” standard – which works in harmony with the opt-in requirement to cabin the potentially massive size of collective actions – best comports with congressional intent and with the Supreme Court's directive that a court “ascertain[] the contours of [a collective] action at the outset.”

Symczyk, 656 F.3d at 192-93 (emphasis supplied; internal citations omitted). Pennsylvania district courts regularly apply this modest factual showing standard in deciding conditional certification. See, e.g., Murphy v. Audubon Co., LLC, 2026 WL 734319, 2026 U.S. Dist. LEXIS 54176, *5-6 (W.D. Pa. Mar. 16, 2026); Barbosa v. Kellermeyer Bergensons Services, LLC, 2025 WL 2983157, 2025 U.S. Dist. LEXIS 207633, *3-6 (E.D. Pa. Oct. 22, 2025); Vasquez v. CDI Corp., 2020 U.S. Dist. LEXIS 229734, *3-6 (E.D. Pa. Dec. 7, 2020); Harrison v. DelGuerico’s Wrecking & Salvage, Inc., 305 F.R.D. 85, 88-89 (E.D. Pa. 2015); Resch v. Krapf’s Coaches, 2012 U.S. Dist. LEXIS 89993, *6-11 (E.D. Pa. June 28, 2012); Pereira v. Foot Locker, 261 F.R.D. 60, 64-66 (E.D. Pa. 2009).

District courts applying the Third Circuit’s “modest factual showing” standard generally refuse to “analyze a case’s merits” because the “only issue” is whether notice should be mailed to the putative members of the FLSA collective. Vasquez, 2020 U.S. Dist. LEXIS 229734, at *7; see also Barbosa, 2025 U.S. Dist. LEXIS 207633, at *8 (merits arguments “improper for the Court to consider at this stage.”); Gauzza, 2018 U.S. Dist. LEXIS 184306, at *5 (refusing to “weigh the evidence, resolve factual disputes, or reach the merits of Plaintiffs’ claims”); Harrison, 305 F.R.D. at 88 (“merits of plaintiff’s claim need not be evaluated in order for notice to be approved and disseminated.”); Resch, 2012 U.S. Dist. LEXIS 89993, at *6 (merits “need not be evaluated”); Pereira, 261 F.R.D at 67 (“We decline to weigh the merits of the parties’ competing theories”).

Likewise, district courts applying the Third Circuit standard generally refuse to weigh the “credibility” of the parties’ competing evidence. As MDPA Judge Yvette Kane observed, “credibility determinations . . . are more properly considered at the final stage of final certification.” Bellan v. Capital BlueCross, 496 F. Supp. 3d 854, 859 (M.D. Pa. 2020); see also Kyem v. Merakey USA, 2021 WL 82969, 2021 U.S. Dist. LEXIS 82969, *15 (E.D. Pa. Apr. 30, 2021) (“At the conditional certification stage, the Court does not weigh evidence, make credibility determinations, or draw conclusions of fact.”); Weirbach v. Cellular Connection, LLC, 478 F. Supp. 3d 544, 547-48 (E.D. Pa. 2020) (“court does not weigh the evidence or resolve factual disputes during the initial inquiry”).[2]

B. The Emerging “Circuit-Split.”

Now that we’ve covered the conditional certification standard applicable in the Third Circuit, let’s turn to the standards in some other federal judicial circuits:

Most notably, the Third Circuit’s “modest factual showing” standard is pretty similar to the standards endorsed – with varying levels of analysis – by several other circuit courts. These arguably include: the First Circuit, see Kwoka v. Enterprise Rent-A-Car Company of Boston, LLC, 141 F.4th 10, 22 (1st Cir. 2025); Waters v. Day & Zimmermann NPS, Inc., 23 F.4th 84, 89 (1st Cir. 2022); the Second Circuit, see Scott v. Chipotle Mexican Grill, Inc., 954 F.3d 502, 520 (2d Cir. 2020); Myers v. Hertz Corp., 624 F.3d 537, 555 (2d Cir. 2010); the Ninth Circuit, see Campbell v. City of Los Angeles, 903 F.3d 1090, 1109- (9th Cir. 2018); the Tenth Circuit, see Thiessen v. General Electric Capital Corp., 267 F.3d 1095, 1105 (10th Cir. 2001); and the Eleventh Circuit, see Hipp v. Liberty National Life Insurance Co., 252 F.3d 1208, 1219 (11th Cir. 2001).

Meanwhile, at least three circuit courts diverge from the Third Circuit’s approach, as indicated by the following opinions:

Swales v. KLLM Transportation Services, L.L.C., 985 F.3d 430 (5th Cir. 2021): This Fifth Circuit opinion represents the most extreme departure from the Third Circuit’s “modest factual showing” approach. The Swales Court held that “district courts should rigorously enforce at the outset of the litigation” the FLSA’s “similarly situated” requirement. Swales, 985 F.3d at 443. The Court reasoned that the “two-step” approach to conditional certification “has no anchor in the FLSA’s text or in Supreme Court precedent interpreting it.” Id. Under Swales, district courts must identify the relevant legal and factual considerations underlying the FLSA claim, determine what discovery is necessary, and then promptly decide whether plaintiffs are genuinely similarly situated before authorizing notice to potential opt-in plaintiffs. See id. at 441. Only then may employees receive notice of the litigation.

Clark v. A&L Homecare & Training Center, LLC, 68 F.4th 1003 (6th Cir. 2023): This Sixth Circuit opinion – unlike Swales – does not reject the two-step approach to certification of FLSA collective actions. However, in describing the standard of proof applicable at the conditional stage, the Clark Court departs from the Third Circuit’s “modest factual showing” standard in favor of a standard akin to preliminary injunction motions. See Clark, 68 F.4th at 1011. Specifically, according to the Sixth Circuit: “for a district court to facilitate notice of an FLSA suit to other employees, the plaintiffs must show a ‘strong likelihood’ that those employees are similarly situated to the plaintiffs themselves. That standard requires a showing greater than the one necessary to create a genuine issue of fact, but less than the one necessary to show a preponderance.” Id. Moreover, “[i] n applying this standard, district courts should expedite their decision to the extent practicable.” Id.

Richards v. Eli Lilly & Co., 149 F.4th 901 (7th Cir. 2025): This Seventh Circuit opinion – like Clark – endorses a two-step approach to FLSA certification but declines to follow the Third Circuit’s “modest factual showing” standard. According to the Richards Court, judges “may issue notice to potential plaintiffs when the named plaintiffs have raised at least a material factual dispute as to the similarity of potential plaintiffs.” Richards, 149 F.4th at 905. This requires the plaintiffs to “produce some evidence suggesting that they and the members of the proposed collective are victims of a common unlawful employment practice or policy.” Id. at 913. Such evidence “need not be definitive[,]” id. at 913, and must be evaluated in light of the fact that, at the notice stage, relevant information is often “in the hands of individuals who are not yet parties to the action,” id. at 912.

C. Competing Viewpoints Regarding the Need for Supreme Court Guidance.

Swales, Clark, and Richards all prompted certiorari petitions in which skilled wage and hour lawyers argued over the stability of this Nation’s “conditional certification” jurisprudence. In these appeals, the parties seeking Supreme Court review have emphasized the differences spawned by Swales, Clark, and Richards. Meanwhile, the parties opposing review have asserted that such differences are exaggerated and relatively non-consequential.

For example, here’s what the petitioners had to say in a November 2025 petition seeking review of Harrington v. Cracker Barrel Old Country Store, Inc., 142 F.4th 678 (9th Cir. 2015), wherein the Ninth Circuit refused to depart from its relatively lenient approach to conditional certification:

This petition is an ideal vehicle for resolving an intractable, acknowledged five-way circuit split over the burden of proof before issuing joinder notice in collective FLSA cases. As it stands, [the jurisdiction] where a plaintiff files determines the burden they shoulder, with some courts “rigorously enforce[ing]” the standard, some applying a “strong likelihood” standard, some requiring merely a “threshold showing,” and some permitting notice on a “modest” and “lenient” standard. These stark differences lead to forum shopping and uneven, unpredictable and unjust enforcement of the FLSA. Only this Court’s intervention can resolve this clear split, which courts and commentators have long recognized.

This Court’s intervention is imperative. This issue recurs in every one of the thousands of cases filed each year seeking collective FLSA relief. Due to the formidable settlement pressures that preliminary certification imposes, the burden applied to certification motions will often decide the outcome of the case, no matter the underlying merits of the claim. As it stands, employees who sue in the Ninth and other circuits enjoy a relaxed legal burden that is untethered to statutory text and inconsistent with E.M.D. Sales. This Court should grant certiorari to restore uniformity to a critical federal statute litigated constantly.

Not surprisingly, the employees’ lawyers disagreed and argued that Supreme Court intervention is unnecessary at this time:

The issue of what evidentiary showing of similarity is sufficient to permit a district court to conclude, in its discretion, that a plaintiff may disseminate notice to potential opt-in members does not merit review in any event – and certainly not in this case.

Although the descriptions of the notice standard by the Fifth, Sixth, and Seventh Circuits are “slightly different” from one another, . . . they are similar in their fundamentals. All three courts recognize that “[t]he watchword” with respect to notice “is flexibility.” . . . All three courts require district courts to consider all available evidence of similarity or dissimilarity prior to ruling on notice. . . . And all three courts agree that district courts should, where possible, seriously endeavor to assess similarity prior to notice, even if making a conclusive ruling at that stage may not always be efficient or practicable.

Given the recency of the relevant circuit precedent, it is unsurprising that the picture of how courts are implementing the decisions in practice has not yet come into focus. This Court should not grant review of an issue that most courts of appeals (including the court of appeals in this case) have not yet addressed and that may end up generating broad consensus.

Someday, perhaps, the Supreme Court will issue an opinion establishing a nationwide standard for district courts to follow in resolving FLSA conditional certification motions. Until then, those of us practicing in Pennsylvania, New Jersey, and Delaware can feel lucky to be guided by a robust body of Third Circuit jurisprudence clearly articulating the conditional certification standard.