August 3, 2026
The Seventh Circuit’s new standard for certifying collective actions, introduced a year ago in an age discrimination case against pharmaceutical company Eli Lilly, has turned out to be less onerous than certification standards recently established by other circuits and hasn’t significantly impacted notice distribution, wage and hour attorneys say.
In August 2025, a Seventh Circuit panel held that for the purposes of collective notice under the Fair Labor Standards Act, district courts must consider evidence from both sides with respect to whether workers are similarly situated enough to proceed together. Courts also may issue notice to potential plaintiffs when the named plaintiffs have raised at least a material factual dispute regarding the similarity of potential plaintiffs, the panel’s majority said.
This new standard has led both workers and defendants to submit declarations to the court — a development that has not significantly impacted the release of notice to purported opt-ins or the certification of collectives under the FLSA, attorneys say.
“Because the standard is raising a material dispute, the fact that the defendant might submit counter-declarations that say something different isn’t fatal to the issuance of notice,” said Rebecca Ojserkis of worker-side firm Cohen Milstein Sellers & Toll LLP.
The case was brought under the Age Discrimination in Employment Act, which features the conditional certification mechanism of the FLSA. The Seventh Circuit’s approach to certification departed from the for notice purposes if a “modest factual showing” is met, and then give a final certification to the collective.
The Seventh Circuit’s analysis also departed from more stringent tests that other circuit courts have introduced.
In 2021, the Fifth Circuit instructed lower courts to first look at certain factors before authorizing the distribution of notices, and in 2023, the Sixth Circuit rolled out a rigorous test directing courts to evaluate whether there is a “strong likelihood” that other employees are similarly situated in order to receive notice of a suit.
The Seventh Circuit test, while more demanding than the two-step process and less strict than the ones the Fifth and the Sixth circuits introduced, is less challenging than expected, Ojserkis said.
At times, there is discovery motion practice, and one court followed the Seventh Circuit’s suggestion to equitably toll claims while those motions are pending, she said.
“The types of things that the parties are relying on are not necessarily so different than what had been used in the two-step [process],” Ojserkis said.
Ojserkis said that following the Seventh Circuit’s decision, plaintiff-side attorneys were concerned that defendants were going to try to litigate the merits at the start of a case.
While that has sometimes occurred, courts have rejected those attempts and have been “just focusing on the similarly situated question of whether or not there is a kernel of a dispute,” she said.
Read Collective Cert. Still Steady 1 Year After 7th Circ.’s Lilly Ruling.