July 21, 2026
Workers have been reevaluating where to lodge Fair Labor Standards Act suits in the year since the Ninth Circuit ruled in a case against Cracker Barrel that only plaintiffs who reside in a state where an FLSA case started in a collective can join a collective, attorneys say.
In July 2025, a panel ruled in a case against Cracker Barrel that only workers in Arizona could join the FLSA collective alleging tip-credit violations. That is because the U.S. Supreme Court’s 2017 decision in Bristol-Myers Squibb Co. v. Superior Court of California applies to collective suits, the panel said.
In Bristol-Myers, the justices ruled that a plaintiff’s claim must “arise out of or relate to the defendant’s forum conduct” for the plaintiff to be allowed to join a collective action.
Several other appeals courts have tackled whether out-of-state plaintiffs can join a collective, with the Sixth, Eighth, Seventh, Third and Second circuits reaching the same conclusion as the Ninth. The First Circuit, so far, stands alone in ruling that Bristol-Myers doesn’t apply.
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In its July 2025 decision, the Ninth Circuit also declined to adopt a stricter test for certifying collectives under the FLSA.
Courts have used the long-standing two-step process to certify collectives, under which they first grant conditional certification for notice purposes if a “modest factual showing” is met and then grant final certification to the collective.
However, in recent years, several courts of appeals introduced new standards that are, at times, more rigorous. That portion of the decision did
That portion of the decision did not introduce anything new within the Ninth Circuit, as district courts there were already following the two-step process to certify collectives, said worker-side attorney Rebecca Ojserkis of Cohen Milstein Sellers & Toll PLLC.
Despite attorneys’ expectations that the Fifth and Sixth circuits’ decisions that came up with different standards to certify collectives were to create a “sea change,” that shift hasn’t happened, Ojserkis said.
“You’re just not seeing gigantic practical changes between the circuits even, and within the circuits, and I think it’s really proving that the issuance of notice doesn’t need to be a big fight,” she said. “It’s just about making sure all of the plaintiffs who could be impacted by this decision are aware of it.”
Read Venue Is Key for FLSA Suits 1 Year After Cracker Barrel Case.