Category: Labor – Employment Law


The use of the two-tier method to determine whether collective actions should proceed under Section 216(b) of the Fair Labor Standards Act (“FLSA”) is inappropriate because it: (1) conflates Rule 23 standards with non-applicable wage and overtime claims under the Fair Labor Standards Act; and (2) wastes judicial resources and the resources of the parties. While the two-tier approach is popular among the district courts, the Eleventh Circuit has stressed that “[n]othing in [the Eleventh Circuit’s] precedent … requires district courts to utilize this approach. Hipp v. Liberty Nat. Life Ins. Co., 252 F.3d 1208, 1219 (11th Cir. 2001). Thus, courts should consider the utility of authorizing notice under Section 216(b) rather than relying on jurisprudential concerns that are based in “imprecise pleading and stare decisis yield[ing] path-dependence and lock-in.” Turner v. Chipotle Mexican Grill, Inc., 123 F. Supp. 3d 1300, 1306 (D. Colo. 2015).

The two-tier approach is a method of determining whether collective actions should proceed under Section 216(b). The first phase uses a very lenient standard to determine whether the named plaintiffs are similarly situated to the putative opt-in plaintiffs and whether there are similarly situated individuals who want to join the litigation. Most plaintiffs clear the low bar of the first phase, just to, in most cases, have their classes de-certified in second phase when the court makes a factual determination on the “similarly situated” issue. See Hipp 252 F.3d at 1218 (“Based on our review of the case law, no representative class has ever survived the second stage of review”).

The conflation of Rule 23 class action standards with the application of 216(b) to collective actions can traced to the 1976 enactment of the Age Discrimination Enforcement Act (“ADEA”). The ADEA authorized similarly situated plaintiffs to aggregate their claims by incorporating 216(b) as its enforcement mechanism. As a result of the proliferation of ADEA lawsuits, the leading cases that address collective action proceedings under section 216(b) are ADEA actions, rather than actions brought under the FLSA. Moreover, because ADEA 216(b) cases often import Title VII discrimination standards that are subject Rule 23 class certification. Thus, what should be a relatively straightforward analysis of wage and overtime claims under the FLSA, is now a confounding analysis that assesses wage and overtime claims with the Rule 23 like two-tiered method, which was designed to address patterns and practices of discrimination. See Turner 123 F. Supp. 3d at 1305–06 (finding that reliance on Rule 23 “class certification” concepts in true 216(b) FLSA cases to be the result of a confluence of factors, including haphazard terminology, a misunderstanding of precedent and legislative intent, and excessive path dependence in the application of stare decisis.) “Rule 23 actions are fundamentally different from collective actions under the FLSA,” Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523, 1530 (2013), as such, courts should not default to the use of the two-tier method when determining if a class should be conditionally certified.

The use of the formulaic two-tier system to authorize court facilitated notice or conditional certification of a “class” under 216(b) wastes resources. Congress authorized collective treatment of actions under 216(b) for the purposes of judicial economy. See Holt v. Rite Aid Corp., 333 F. Supp. 2d 1265, 1269 (M.D. Ala. 2004) (““the judicial system benefits by efficient resolution in one proceeding of common issues of law and fact arising from the same alleged discriminatory [or illegal] activity.”) However, the pervasiveness of the two tiered method has made the “[s]eeking out and notifying sleeping potential plaintiffs”- an activity that “was once demeaned as a drain on judicial resources” – into a misguided “tool of judicial administration.” See Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165 (SCALIA, J., dissenting). As many courts grant conditional certification without “cognizan[ce] of the factual and legal issues presented by the case,” West v. Verizon Communications, Inc., WL 2957963, at *4 (M.D. Fla. Sept. 10, 2009), the goal of judicial economy is vitiated by the futile litigation regarding class certification. “To create a collective action class, including the cost associated with that when a Court is convinced that there is insufficient support for the same prior to certification would be an exercise in futility and wasted resources for all parties involved.” Hart v. JPMorgan Chase Bank, N.A., WL 6196035, at *6 (M.D. Fla. Dec. 12, 2012). Thus, courts should use their discretion to practically assess the appropriateness of conditional certification. See id. at *4 (“[d]istrict [c]ourts enjoy broad discretion in deciding how best to manage the cases before them”). For a discussion regarding how employers can successfully defend against Section 216(b) collective actions, please our article addressing this topic and the defense of “individualized” claims.

Peter T. Mavrick has successfully represented many businesses in labor and employment law litigation. This article is not a substitute for legal advice tailored to a particular situation. Peter T. Mavrick can be reached at:; Telephone: 954-564-2246; Address: 1620 West Oakland Park Boulevard, Suite 300, Fort Lauderdale, Florida 33311.


Employers that are faced with collective actions under the Fair Labor Standards Act may be able to defeat Motions for Conditional Certification if they can demonstrate the individualized nature of named plaintiff’s claims. See Caballero v. Kelly Services, Inc., WL 12732863, at *7 (S.D. Tex. Oct. 5, 2015) (denying certification where alleged violations were “not the result of a systemic policy,” so “assessment of the[ ] issues necessitates an individual inquiry for each Plaintiff, thereby making a collective action inappropriate.”) Employers can prove that the potential plaintiffs’ claims are individualized and unfit for collective action by establishing the disparate nature of the putative class’ and its representatives job requirements and pay provisions. The need for individualized inquires contravenes the basic theory of judicial economy upon which the certification of collective actions is based. See id. at *1. Therefore, employers who highlight the individualized defenses and inquiries may prevent a collective proceeding. See Lugo v. Farmer’s Pride Inc., 737 F. Supp. 2d 291, 300–01 (E.D. Pa. 2010).

To determine whether 216(b) collective actions are appropriate, most courts utilize the two-tier method. See Hipp. at 1208. At the first “notice stage,” the district court makes a decision—usually based only on the pleadings and any affidavits which have been submitted— as to whether the putative class should be conditionally certified. See id. When assessing the pleadings and affidavits, courts in the Southern District of Florida satisfy themselves that “(1) there are similarly situated with regard to their job requirements and pay provisions; and (2) there is a desire among similarly situated individuals to opt-in to the class.” See Martinez at 1853.  Put another way, there is a two-part analysis to assessing the first tier, which determines whether conditional certification will be granted.

A defendant that successfully highlights the differences in pay and job requirements between the putative plaintiffs will probably defeat a Motion for Conditional Certification. Defendants should contrast on the job requirements and pay provisions of the named plaintiff with those that the named plaintiff seeks to represent. Thus, defendants should bring attention to inconsistencies in the pleadings and affidavits or declarations to establish that plaintiff differences in pay provisions and job requirements: defendants should highlight differences such as exempt status, job duties, and schedules, among other things. See Palacios v. Boehringer Ingelheim Pharm., Inc., WL 6794438, at *1 (S.D. Fla. Apr. 19, 2011) (denying first stage “notice” authorization because an individualized analysis was required to determine whether putative class members are exempt from the FLSA overtime provisions); Holt v. Rite Aid Corp., 333 F. Supp. 2d 1265, 1272 (M.D. Ala. 2004) (denying conditional certification because “similarly situated” inquiry must be analyzed in terms of the nature of the job duties performed by each putative plaintiff); Udo v. Lincare, Inc., WL 5354589, at *11 (M.D. Fla. Sept. 17, 2014) (denying notice authorization partly due to the variance in schedules among the potential opt-in plaintiffs.)

Moreover, even if named plaintiffs prove that they are similarly situated in pay provisions and job requirements, a Motion for Conditional Certification can still be defeated if the defendant can prove that there are no similarly situated individuals who wish to join the litigation. Statements or claims that reference that plaintiffs have “spoken to multiple other employees… who advised that, if given formal notice in this case, they would opt-in….”  are insufficient as they are hearsay. See Davis v. Charoen Pokphand (USA), Inc., 303 F.Supp.2d 1272, 1277 (M.D.Ala.2004) (holding that plaintiff failed to demonstrate other plaintiffs exist who want to opt-in when only evidence was that plaintiff spoke to employees who stated that they would join the suit.) Further, unsupported assertions that are based on “beliefs” “anticipation” and “conversations” are considered to be conclusory and fall short of the “substantial” and “detailed” allegations necessary to satisfy the “similarly situated” element. See Louis–Charles v. Sun–Sentinel Co., 2008 WL 708778 (S.D.Fla. Mar.14, 2008) (holding that plaintiff’s “anticipation” is merely his own opinion and, therefore, insufficient to certify the class); see also Hipp at 1219.

Peter T. Mavrick has successfully represented many businesses in labor and employment law litigation. This article is not a substitute for legal advice tailored to a particular situation. Peter T. Mavrick can be reached at:; Telephone: 954-564-2246; Address: 1620 West Oakland Park Boulevard, Suite 300, Fort Lauderdale, Florida 33311.

An employer cannot make decisions based on a protected characteristic. What is a protected characteristic?

A protected characteristic would include things such as the age of the person or their gender or their race or their ethnicity. Those are factors that the low considers to be typically irrelevant to whether a person is really doing a good job. Most employers aren’t going to be interested in what the person’s race is or their ethnicity is, they’re going to be interested typically in whether they’re doing a good job. That’s where the law forbids employers from taking into consideration certain protected characteristics such as those I’ve described.

Are temporary employees able to file discrimination claims?

The Temporary employees can file discrimination claims, but only certain types of discrimination claims. Some claims require a certain period of employment for the employee to bring the claim. In other words, they had to be with the employer for a certain period of time to be able to have rights under that. An example would be under the Family Medical Leave Act where it would require a certain hours of employment and certain duration of employment to be able to have rights under that particular statute. Many employees can bring discrimination claims simply as temporary employees. There is no time period that they had to be employed by the employer, particularly if there is discrimination based on for example race or age or ethnicity.

Am I entitled to severance pay?

Typically no employee is entitled to severance pay unless there is a contractual obligation during the employment relationship where the employer and the employee had agreed that earlier in the relationship that when the relationship ends the employee is entitled to a certain amount of severance.

Are non-compete agreements always enforceable?

Non-compete agreements are not always enforceable. Florida typically requires that all competition be allowed, and there shall be no restriction of competition, but there’s a separate statute in Florida, which is 542.335 Florida statutes that governs non-compete agreements. That statute requires that there be certain legitimate business interests of the employer set out in the statute such as for example, the protection of trade secrets or the protection of confidential information. The employer has to plead and prove these to be able to force a non-compete covenant.

Are all employers covered under the Fair Labor Standards Act (FLSA)?

Not all employers are covered by the Fair Labor Standards Act. There are 2 basic types of coverage under the Fair Labor Standards Act. One type, the typical type is enterprise coverage meaning that the employer has to have at least $500,000 in revenues, and it has to have at least 2 employees. There are other types of coverage, which are called traditional coverage where there’s certain businesses that are going to otherwise be covered in the Fair Labor Standards Act regardless of the revenues and the number of employees.

Are there ever any exceptions to being an employee at-will?

There are many exceptions to employment at will, and these are what are called discrimination laws. When an employee is being discriminated against based on race, on age, ethnicity, whistle-blower status, worker’s compensation status, these are exceptions to the at will rule that have been created by the courts as well as by the legislatures. These allow the employees to enjoy protections where the employer cannot simply saying, “You’re an at-will employee because I’m terminating you.” The laws say you’re not allowed to fire somebody for these particular reasons, and if you do you’re subject to damages for those claims.