FLSA Collective Action Conditional Certification and Decertification Strategies

Evaluating Whether to Pursue or Oppose Certification or Decertification Motions, Navigating Certification Challenges in Hybrid Cases

Recording of a 90-minute CLE webinar with Q&A

Conducted on Thursday, May 11, 2017
Recorded event now available

This CLE webinar will provide employment counsel with guidance for pursuing or opposing conditional certification or decertification motions in collective actions brought under the federal Fair Labor Standards Act (FLSA). The panel will discuss the standards courts are applying when ruling on conditional certification or decertification, and best practices for counsel for pursuing conditional certification or decertification motions and preparing compelling arguments to support such motions. The panel will also discuss unique certification issues with hybrid cases involving both FLSA collective actions and state law wage and hour class claims.


Wage and hour collective actions under the FLSA continue to plague employers. In 2016 more FLSA collective actions were filed than any other type of employment-related class action. The relative ease of obtaining conditional certification in FLSA collective actions, compared to Rule 23 class actions, make them an attractive option for plaintiffs’ counsel. Once a certification order is obtained, plaintiffs’ counsel have more leverage to negotiate favorable settlements on behalf of employees.

Counsel for employers strive to defeat conditional certification in FLSA collective actions to avoid the time and expense of discovery, settlement negotiations, and trial. When they are unsuccessful in opposing conditional certification, employers’ counsel often pursue motions for decertification.

Determining whether and how to oppose conditional certification or pursue decertification and preparing arguments to support such motions involve an evaluation of several strategic factors, including the jurisdiction of the case and the nature of the plaintiffs’ substantive claims.

An increasing number of wage and hour lawsuits are filed as hybrid cases that include both FLSA collective claims and state law wage and hour class claims. Certification procedures are different under Section 216(b) of the FLSA and Rule 23 of the Federal Rules of Civil Procedure, which governs state wage and hour claims.

Frequently, plaintiffs’ counsel use conditional certification as an avenue to obtain opt-ins to aid in the discovery process and bolster their Rule 23 evidence.

Listen as our authoritative panel discusses recent case law trends and strategies regarding pursuing or opposing conditional certification and decertification in FLSA collective actions.


  1. FLSA collective actions—recent trends and case law developments
  2. Certification of FLSA collective actions—best practices for plaintiffs’ and employers’ counsel
    1. Notice stage
    2. Final certification stage
  3. Decertification of FLSA collective action—best practices for plaintiffs’ and employers’ counsel
  4. Certification considerations and best practices for hybrid cases


The panel will review these and other key issues:

  • What are the recent case law trends concerning the standards for conditional certification or decertification of FLSA collective actions?
  • What are some best practices for plaintiffs’ and employers’ counsel for pursuing or opposing conditional certification or decertification motions?
  • What is the scope of evidence that is discoverable before and after conditional certification of the collective class and how can employers’ counsel limit or best manage discovery?
  • What are the unique certification issues for hybrid FLSA collective claims and state law wage and hour claims?


Matthew C. Helland, Partner
Nichols Kaster, San Francisco

Mr. Helland has handled both large class actions and individual matters throughout this career and has developed a record of success in significant and complex litigation. His cases involve a variety of issues, including wage and hour rights, WARN Act violations, breach of contract, Truth in Lending Act claims, and severance negotiations. Mr. Helland is a frequent lecturer on wage and hour claims, among other topics.

Jennifer A. Riley, Partner
Seyfarth Shaw, Chicago

Ms. Riley practices in the employment litigation area, with a particular emphasis on complex collective and class action proceedings. Ms. Riley counsels and defends employers from a range of employment law theories, including claims of race, age, gender, and disability discrimination, sexual harassment, retaliation, and alleged wage and hour violations.

Peter J. Wozniak, Senior Counsel
Seyfarth Shaw, Chicago

A member of the firm’s Labor & Employment Department, Mr. Wozniak's practice includes defending employers throughout the U.S. in complex employment discrimination class actions and single plaintiff litigation, EEOC pattern or practice lawsuits, and wage and hour class and collective actions. He Wozniak is a litigator with in-depth experience performing a broad range of outcome critical functions in support of complex matters having multi­million dollar and business-essential consequences for some of the world’s largest corporations.


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