August 7, 2025
A new framework the Seventh Circuit laid out for certifying collective actions in wage and hour litigation has attorneys for both employers and workers at first blush feeling relieved, as the panel majority put forward a flexible approach that gives lower courts discretion.
The Seventh Circuit panel majority on Tuesday said in Monica Richards v. Eli Lilly & Co. et al. that its framework could result in either one or two steps for collective certification.
That departed from the approach of the Ninth Circuit, which recently maintained a long-standing two-step approach that requires only a “modest factual showing” for conditional certification. It also strayed from the Fifth Circuit, which shifted to a “rigorous” one-step test, and the Sixth Circuit, which created a “strong likelihood” alternative to two steps.
Under the Seventh Circuit’s new approach, when evaluating whether workers are similarly situated to proceed together as a collective, district courts must weigh evidence from both sides regarding similarity. Courts can also issue notice to potential plaintiffs when the named plaintiffs have raised at least a material factual dispute about the similarity of potential plaintiffs.
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But the Seventh Circuit panel majority decided to go in a new direction, while drawing from the U.S. Supreme Court’s 1989 holding in Hoffmann-La Roche Inc. v. Sperling .
“It is certainly a departure from what most courts in the Seventh Circuit were doing,” said Rebecca Ojserkis of worker-side firm Cohen Milstein Sellers & Toll PLLC.
It also moves away from the new tests that came from the Fifth Circuit’s 2021 ruling in Swales v. KLLM Transport Services LLC and the Sixth Circuit’s 2023 ruling in Clark v. A&L Homecare & Training Center LLC , Ojserkis said.
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The new approach also could lead to uncertainty, Cohen Milstein’s Ojserkis said.
“This standard, in trying to provide more guidance to district courts, still has a lot of opening for district court discretion,” she said. “There’s a lot of room for parties to have more questions from this standard.”
Read 7th Circ.’s Collective Cert. Standard Strikes Balance, Attys Say.