November 28, 2025
The debates over who qualifies for a transportation worker exemption to federal arbitration requirements and whether two steps should be used for collective action certification are some of the wage and hour issues on employment law attorneys’ minds as 2025 winds down.
Meanwhile, in federal courts, questions of whether wage and hour claims brought alongside allegations of sexual assault or harassment are exempt from arbitration and the proper standard for reimbursing pizza delivery drivers are also playing out.
Here, Law360 explores five wage and hour legal questions that are developing.
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What standard should apply for collective action certification?
Two federal circuit courts in recent months have weighed in on whether the widely used twostep process for collective action certification is the proper standard, and parties in both of those cases have asked the U.S. Supreme Court to review.
In Andrew Harrington et al. v. Cracker Barrel Old Country Store Inc., a Ninth Circuit panel in July held on to the two-step process, in which a court first grants conditional certification for the purpose of distributing notice based on a “modest factual showing” and later addresses final certification or decertification.
Then in August, a Seventh Circuit panel in Monica Richards v. Eli Lilly & Co. et al. introduced a flexible approach that could involve either one or two steps.
The certiorari petitions that are now pending contain slightly different questions. In one, Eli Lilly and Co. is asking the justices to revisit Hoffmann-La Roche v. Sperling, the 1989 high court decision that gave courts the discretion to give notice to potential plaintiffs.
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The two steps come from a New Jersey federal court’s 1987 decision in Lusardi v. Xerox Corp. In 2021, a Fifth Circuit panel in Swales v. KLLM Transport Services LLC tossed the two steps in favor of a single, more rigorous step, and a Sixth Circuit panel in 2023 in Clark v. A&L Homecare and Training Center LLC established an intermediate test.
There hasn’t been much movement on the issue in the lower courts since this summer’s decisions, said Rebecca Ojserkis of worker-side firm Cohen Milstein Sellers & Toll PLLC. “For the most part, this just hasn’t really percolated enough to see how courts are going to respond to the Seventh Circuit decision,” she said.
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The employment tests that we’re working with from the past nearly 100 years, from when the
FLSA was enacted, don’t necessarily contemplate how work is performed today,” said Cohen Milstein’s Ojserkis, whose firm has represented incarcerated workers in wage litigation. “I
think that revisiting across courts and an appreciation for work being performed in all settings
is warranted.