Collective Action Under FLSA in the Sixth Circuit

If you follow wage-and-hour law, you know that Fair Labor Standards Act (FLSA) collective actions can go from “one unhappy employee” to “hundreds of opt-ins” faster than you can say “overtime.” In 2023, the U.S. Court of Appeals for the Sixth Circuit decided Clark v. A&L Homecare & Training Center, LLC, a case that didn’t just tweak the rules for FLSA collective actionsit rewrote the playbook for courts in Kentucky, Michigan, Ohio, and Tennessee.

In plain English, the Sixth Circuit made it harder for plaintiffs to get court-approved notice out to other workers, adopting a tougher “strong likelihood” standard instead of the historically lenient, almost rubber-stamp approach many courts had used for decades. Employers are thrilled. Plaintiffs’ lawyers, not so much. Everyone else is just trying to figure out what this actually means in real life.

1. Quick Refresher: What Is an FLSA Collective Action?

The FLSA sets the federal rules for minimum wage and overtime. When an employer allegedly violates those rules, a single employee can sue not just for themselves, but on behalf of other workers who are “similarly situated.” That lawsuit is called a collective action.

1.1 Collective Action vs. Class Action: Why It’s Different

FLSA collective actions are often mentioned in the same breath as Rule 23 class actions, but they operate differently:

Opt-in vs. opt-out: In a Rule 23 class action, everyone in the class is in unless they opt out. In an FLSA collective, employees must affirmatively opt in by filing a consent form.
“Similarly situated” vs. Rule 23 requirements: Instead of satisfying numerosity, commonality, and adequacy requirements, FLSA plaintiffs must show that proposed collective members are “similarly situated”a standard courts have been defining in different ways for years.
Court-approved notice: Before other employees join, the court typically decides whether to authorize written notice that explains the lawsuit and how to opt in.

1.2 Why the Notice Stage Is a Big Deal

In practice, the “notice” decision often makes or breaks the case. Once notice goes out:

Dozens or hundreds of workers may join, multiplying potential exposure.
Defense costs skyrocket, pushing employers toward settlement.
Courts face heavier case management burdens as the group grows.

That’s why the standard for sending noticehow much evidence plaintiffs must show before the court lets them invite coworkers into the caseis such a hotly contested issue.

2. The Old Way: Lusardi’s Two-Step Dance

For roughly three decades, most courts followed a judge-made framework that came out of a New Jersey district court case, Lusardi v. Xerox Corp. This wasn’t in the FLSA statute or any federal rule; it simply evolved because courts needed a system.

2.1 Step One: “Conditional Certification” (The Easy Door)

At the first stageoften early in the caseplaintiffs asked the court for “conditional certification.” The bar was low. Many courts required only a “modest factual showing” that other employees were similarly situated. Affidavits from a few workers or some basic payroll records often did the trick.

Once conditional certification was granted, the court authorized notice to all workers in the proposed group. Even if some had only a loose connection to the named plaintiffs’ situation, they often got the letter.

2.2 Step Two: Decertification (Theoretical Cleanup Round)

After discovery, defendants could move to “decertify” the collective, arguing that the opt-in plaintiffs were too different to be treated as a group. In theory, this was when courts weeded out people who weren’t truly similarly situated.

In reality? By the time decertification rolled around, employers had already spent a lot of money, many plaintiffs were already in the case, and settlement pressure was high. Critics argued that Lusardi’s lenient first step tilted the field heavily in favor of plaintiffs and encouraged “send notice now, sort them out later” litigation.

3. The Sixth Circuit’s Pivot: Clark v. A&L Homecare

Enter the Sixth Circuit. In Clark v. A&L Homecare & Training Center, LLC, home healthcare workers claimed they weren’t properly paid overtime. When they asked the district court to help them notify other workers, the court faced a key question: What standard should apply before notice goes out?

On appeal, the Sixth Circuit used the opportunity to rethink the entire Lusardi structure. The court:

Rejected the traditional two-step Lusardi process that many district courts had used for years.
Declined to fully adopt the Fifth Circuit’s approach in Swales v. KLLM Transport Services, which had also rejected Lusardi but in a slightly different way.
Adopted a new “strong likelihood” standard for sending court-authorized notice in FLSA collective actions.

3.1 What Does “Strong Likelihood” Mean?

The Sixth Circuit analogized its new standard to the showing required for a preliminary injunctionspecifically, the requirement that a plaintiff show a “likelihood of success on the merits.” But it narrowed the focus. The issue at the notice stage is not who will win the whole case; it’s whether potential opt-ins are similarly situated.

Under Clark, plaintiffs must show a strong likelihood that:

The named plaintiff and the employees to be notified are subject to common policies or practices.
Those policies or practices allegedly violate the FLSA in a similar way for all of them.
The similarities are substantial enough that it makes sense to handle their claims together in one proceeding.

That’s a noticeable step up from the old “modest factual showing.” It doesn’t require plaintiffs to prove their whole case up front, but it does demand real evidence, not just broad allegations and a couple of copy-and-paste declarations.

3.2 Where This New Standard Applies

The Sixth Circuit’s decisions bind federal district courts in:

Kentucky
Michigan
Ohio
Tennessee

Employers and employees in those states now play by Clark’s “strong likelihood” rules whenever they’re dealing with FLSA collective actions in federal court.

4. How Clark Changes the Playbook

4.1 For Plaintiffs and Their Lawyers

For plaintiffs’ counsel, the days of filing a broad complaint and quickly getting conditional certification with minimal evidence are overat least in the Sixth Circuit. Now:

You need more than a handful of boilerplate declarations. Courts will look for details: job titles, job duties, pay practices, and how the alleged FLSA violation touched everyone in the proposed group.
Evidence from multiple locations, shifts, or supervisors may be necessary to establish true commonality.
The complaint and declarations should tell a coherent story that connects the dots between company policy and widespread FLSA violations.

Practically, this means front-loading the work. More investigation, more fact gathering, and more strategic case shaping must happen before the motion for notice is filed.

4.2 For Employers and Defense Counsel

Employers, meanwhile, gain a meaningful opportunity to challenge notice requests before the case balloons.

They can argue that the plaintiffs haven’t shown a strong likelihood of similarityperhaps because job duties differ, locations operate differently, or managers exercise discretion in ways that defeat collective treatment.
They can push back on overly broad notice groups, narrowing them to roles or locations where the evidence actually lines up.
They can use better documentation (time records, job descriptions, policies) to show that the supposed “common policy” isn’t as uniformor as unlawfulas plaintiffs claim.

In short, Clark gives employers a stronger gatekeeping argument. The notice stage is no longer a formality; it’s a real mini-litigation about whether this should be a collective case at all.

5. Practical Takeaways for Employers in the Sixth Circuit

If you employ workers in Kentucky, Michigan, Ohio, or Tennessee, Clark is more than just an interesting case citation. It’s a reason to tighten up your wage-and-hour practices now.

5.1 Strengthen Policies and Documentation

Clarify overtime rules: Make sure handbooks and policies clearly identify who is nonexempt, how overtime is calculated, and how employees should record their time.
Train supervisors: Many FLSA problems arise not from the written policy, but from how individual managers tell employees to work “off the clock” or skip breaks.
Maintain accurate records: Good timekeeping and payroll records are your best friend if you’re accused of systemic wage-and-hour violations.

5.2 Respond Strategically if You’re Sued

When a complaint lands on your desk:

Expect a motion for noticeand prepare to contest whether a strong likelihood of similarity exists.
Gather evidence quickly about the proposed notice group: how many roles, what duties, which locations, and how pay practices actually work.
Consider whether some employees truly share the same alleged violation or whether the group is too diverse for collective treatment.

A thoughtful early response under Clark can dramatically shrink the potential scope of the caseor prevent it from becoming a collective at all.

6. Practical Takeaways for Employees and Their Counsel

For employees, Clark doesn’t close the courthouse doors, but it does mean that building a successful collective case requires planning and detail.

Gather concrete facts: Who else is affected? Are they in the same role or department? Do they follow the same pay practices?
Document patterns, not just isolated events: A one-off paycheck error is very different from a company-wide rule that no one gets paid for pre-shift work.
Expect more scrutiny: Courts in the Sixth Circuit will look closely at how similar the proposed opt-ins really are before allowing notice.

And as always: this article is for general information only, not legal advice. Workers and employers should consult qualified counsel for guidance on specific situations.

7. The Bigger Picture: A Growing Circuit Split

The Sixth Circuit isn’t alone in rethinking FLSA collective procedures. The Fifth Circuit did it first in Swales, and other courts and commentators have been debating whether a uniform national standard is needed.

For now:

Some courts still use the traditional Lusardi two-step framework.
The Fifth and Sixth Circuits have moved to more demanding tests for sending notice.
Scholars and practitioners are watching closely to see if the U.S. Supreme Court or Congress will eventually weigh in to unify these approaches.

Until that happens, where a case is filed can significantly shape how easyor difficultit is to pursue an FLSA collective action.

8. Real-World Experiences Under the Sixth Circuit’s New Standard

Legal standards can feel abstract, so let’s talk about what this shift looks like on the ground for the people who actually live with it: HR teams, employees, and lawyers on both sides.

8.1 The HR Director’s View

Picture an HR director for a regional healthcare company with locations across Ohio and Kentucky. Before Clark, the company might receive a lawsuit from one nurse aide and, a few months later, watch the case quietly expand as a court allowed notice to hundreds of current and former employees on a fairly thin record.

Now, after Clark, that same HR director works more closely with legal counsel from day one. They know that if plaintiffs can’t show a strong likelihood that all the proposed opt-ins did similar work under the same pay policies, the court may cut back the groupor refuse to send notice entirely. That makes:

Accurate job descriptions more valuable, because they show real differences between roles.
Consistent timekeeping systems essential, so the company can demonstrate how hours and overtime are tracked.
Manager training critical, to avoid “unofficial” rules that undermine compliant written policies.

In short, the HR director feels more incentive to invest in compliance on the front end and more empowered to defend the company if a broad collective lawsuit is filed.

8.2 The Employee’s Perspective

On the other side, imagine a warehouse worker in Michigan who believes their employer is shaving time from their shifts. Under the old Lusardi approach, their attorney might file a case based on a few declarations and quickly seek conditional certification for all hourly workers at multiple facilities.

Post-Clark, that worker’s attorney needs more detail:

Are loading dock staff and inventory clerks really subject to the same unpaid-time practice?
Do all locations follow the same time-rounding rules?
Is there evidence from multiple departments, or is the problem isolated to one supervisor?

For employees, this can feel like a higher hill to climb. However, it also encourages careful case development and may ultimately lead to more focused, better organized collective actions centered on genuinely shared issues.

8.3 The Lawyer’s Balancing Act

Both plaintiff-side and defense lawyers now treat the notice stage more like a serious evidentiary hearing than a procedural checkbox. Plaintiffs think carefully about how narrowly to define the proposed collectivetoo broad, and they risk losing at the notice stage. Employers decide whether to fight notice aggressively or negotiate early, depending on the strength of the evidence and the potential size of the group.

Many lawyers report that this shift has changed settlement dynamics. Cases that once might have exploded into massive collectives now stay smaller and more manageable, or they resolve earlier when it becomes clear that meeting the “strong likelihood” standard will be difficult.

In that sense, Clark doesn’t just change doctrine; it changes strategy, expectations, and the day-to-day experience of everyone involved in FLSA litigation within the Sixth Circuit.

9. Conclusion: A Higher Bar, a Clearer Path

The Sixth Circuit’s decision in Clark v. A&L Homecare marks a major turning point for FLSA collective actions in Kentucky, Michigan, Ohio, and Tennessee. By rejecting the old Lusardi two-step framework and adopting a “strong likelihood” standard, the court raised the bar for plaintiffs seeking court-authorized notice while giving employers a stronger early defense.

For employers, the message is clear: invest in compliant policies, consistent practices, and solid documentation nowit will pay off if a collective action is filed. For employees and their counsel, the takeaway is just as important: build a detailed factual record early, focus on genuinely similarly situated workers, and be prepared to show why a collective action is the right vehicle.

The law around FLSA collective actions is still evolving nationally, and the Sixth Circuit’s approach is part of a broader conversation about how large and complex wage-and-hour cases should be managed. Until a uniform standard emerges, understanding decisions like Clark is essential for anyone navigating collective action risk under the FLSA.