Court directs application of a more rigorous and more sensible standard.
Much of the current tsunami of wage and hour litigation across the country has been fueled by the use of a two-step procedure in Fair Labor Standards Act (“FLSA”) collective actions that simultaneously facilitates the bringing of such claims and puts unreasonable pressure on defendants to settle them. We’ve commented on this procedure and its effects on several occasions. (Read our August 21, 2019, June 14, 2019, July 31, 2017 blogs). That procedure is fraught with problems, is replete with inaccurate terminology, and feeds rather than streamlines litigation.
For decades, defendants have been hampered in their efforts by procedural hurdles to effective challenges, but on January 12, 2021, in Swales v. KLLM Transport Services, L.L.C., the Fifth Circuit expressly rejected that process. Instead, the Fifth Circuit rejected the two-step process and the lenient standard courts have applied in authorizing notice to the class in favor of a more “rigorous” one-step standard. Continue Reading