FLSA Collective Action Conditional Certification and Decertification Strategies

Evaluating Pursuit or Opposition of Certification or Decertification Motions, Navigating Challenges in Hybrid Cases

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

Conducted on Wednesday, June 19, 2019

Recorded event now available

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Program Materials

This CLE webinar will provide employment counsel with guidance for pursuing or opposing conditional certification or decertification motions in collective actions brought under the Fair Labor Standards Act (FLSA). The panel will discuss the standards courts are applying when ruling on conditional certification or decertification, highlighting recent decisions in the Third, Ninth and Eleventh Circuits. The panel will discuss best practices for counsel in pursuing conditional certification or decertification motions and preparing compelling arguments to support such motions. The panel will also address 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. 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. With a certification order, plaintiffs' counsel has 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 with 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 crucial 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?


Brome, Daniel
Daniel S. Brome

Nichols Kaster

Mr. Brome focuses on class and collective actions, He represents workers seeking recovery of minimum wage, overtime,...  |  Read More

Janice, Christina
Christina M. Janice

Senior Counsel
Seyfarth Shaw

Ms. Janice is a senior counsel of Seyfarth Shaw LLP, bringing to the firm extensive professional experience both in...  |  Read More

Riley, Jennifer
Jennifer A. Riley

Seyfarth Shaw

Ms. Riley practices in the employment litigation area, with a particular emphasis on complex collective and class...  |  Read More

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