July 17, 2025
By Rebecca Ojserkis
While the Fair Labor Standards Act inches closer to its 90th birthday, its statutory text has attracted significant judicial attention in recent years on foundational legal questions.
In particular, two circuit splits have been bubbling on the proper standard to issue notice and the scope of personal jurisdiction requirements.
On July 1, the U.S. Court of Appeals for the Ninth Circuit weighed in with its ruling in Harrington v. Cracker Barrel Old Country Store Inc. — adding another decision to the increasingly lopsided scales. In short, the two-step certification process continues to reign supreme.
However, plaintiffs are increasingly stymied in bringing nationwide collective actions anywhere except where employers are headquartered or principally based.
With cases pending in other jurisdictions, the scales may continue to tilt or regain balance in the coming months.
Two-Stepping Remains in Fashion
Although the FLSA invites workers to collectively vindicate their rights under the statute, its text does not specify how courts should determine whether workers are sufficiently similarly situated to proceed as a group.
Historically, many appellate and trial courts, in their discretion, have adopted a two-step process that is often credited to the 1987 decision in Lusardi v. Xerox Corp. in the U.S. District Court for the District of New Jersey.
The first step merely asks whether the court should authorize notice to putative collective members. Thus, courts expect only a modest showing of connective tissue between the proposed collective — prior to, or following, only limited discovery.
Later, at step two, courts apply a more stringent benchmark when revisiting their earlier determinations as to whether the plaintiffs are sufficiently similarly situated, such that the cases can proceed en masse.
This widely employed procedure began to come under fire, though, as the U.S. Court of Appeals for the Fifth Circuit, and then the U.S. Court of Appeals for the Sixth Circuit, adopted heightened bars to collective certification in 2021 and 2023, respectively.
In subsequent years, employers have regularly forecast a sea change when pressing for other jurisdictions to follow their sister circuits. But the promised sweep of the Fifth and Sixth Circuit’s new notice standard has not come to pass.
Except for a handful of outlier decisions, most district courts have stayed the two-step course. This majority has included courts in the Ninth Circuit, which approved of two-step use in Campbell v. City of Los Angeles in 2018.
The Ninth Circuit’s Ruling
With its July 1 wage and hour ruling in Harrington v. Cracker Barrel, the Ninth Circuit has reiterated its embrace of the two-step procedural mechanism.
The case involved a challenge by current and former Cracker Barrel employees for wage and hour law violations related to tipped workers. The court declined the defendant’s request to adopt a heightened standard for issuing notice, on the ground that the Ninth Circuit had already decided this issue in Campbell.
The court’s brief analysis has relegated to a footnote what had been the subject of commentator forecasting: that the U.S. Supreme Court’s FLSA ruling this year may signal a turning of the tide toward the collapse of the notice and collective certification rulings.
On Jan. 15, in EMD Sales Inc. v. Carrera, the Supreme Court held that the preponderance of the evidence, the default standard of proof, governs whether a particular FLSA exemption applies.
But in its Harrington decision, the Ninth Circuit easily dispatched with the defendant’s analogy since the high court had “said nothing about how a district court should manage a collective action or the procedure it should follow when determining whether to exercise its discretion to facilitate notice to prospective opt-in plaintiffs.”
Even on the next question presented — whether notice could issue when fact disputes remained about the arbitrability of claims — the court in Harrington emphasized how notice dissemination falls under the district court’s discretion over case management.
The panel did not note, but could have, that courts have always had to satisfy themselves at the step two certification stage that FLSA plaintiffs were similarly situated by a preponderance of the evidence.
While a possible change still threatens pending appeals[15] and the parties’ petitions for rehearing, the Harrington court’s succinct and unanimous handling of this question suggests that early FLSA notice — all that is at issue at step one of the two-step certification process — may remain the norm.
Barriers Mount for Nationwide Collectives
Mirroring trends with respect to other nationwide procedural vehicles, federal courts of appeal have increasingly taken issue with multistate FLSA collectives, depending on where they are filed.
In 2017, the Supreme Court issued a seminal personal jurisdiction ruling in Bristol-Myers Squibb Co. v. Superior Court of California, a consolidated mass action involving state law claims. The court held that each plaintiff needed to, but did not, establish specific personal jurisdiction over the out‑of-state defendant corporation.
Employers have argued — mostly with success — that Bristol-Myers should also apply to federal courts’ jurisdiction over FLSA claims.
Until the Harrington decision, the circuits had split four to one, with the majority of circuits — at times over vigorous dissents — expanding Bristol-Myers to hold that each FLSA opt-in plaintiff must establish personal jurisdiction as to each defendant.
The Ninth Circuit joined a growing chorus with its decision in Harrington, vacating and remanding the case to the U.S. District Court for the District of Arizona to reassess its issuance of notice beyond plaintiffs who worked in Arizona, the state where the suit was brought. Other circuits are expected to take a stand soon.
Functionally, these decisions render collective actions impossible for conduct occurring in several states, unless the suit is brought in employers’ backyards — where general jurisdiction exists.
This line of authority results in what is effectively corporate forum shopping, because plaintiffs must file nationwide FLSA collective actions in the states that their employers choose to call home.
While some may view this as a mere inconvenience, this procedural hurdle can pose, at best, inefficiencies for the parties and courts, and at worst, a substantive bar to the vindication of workers’ rights.
Take, for example, a minimum wage challenge that is brought against two joint employers, each with their own corporate home. Under the decisions of the Ninth Circuit and others, plaintiffs must file separate, parallel actions — that is, if they can find counsel with the resources to litigate on a dual track.
Practically speaking, the harder it is for workers to bring collective challenges, the greater the risk that employers might violate wage and hour laws, including tip compliance provisions, on local and larger scales.
However, there may be a silver lining for workers. While the Ninth Circuit gave the notice questions the back of the hand, it delved more deeply into the topic of personal jurisdiction.
Among the reasons for its ruling, Harrington emphasized the contrast between class and collective actions. The Ninth Circuit’s predecessor sister circuits did the same, grounding their conclusions on the different rigors to which classes and collectives are subject.
By extension of the logic in the four aforementioned opinions, the standard for finding that plaintiffs are similarly situated for collective certification should be decidedly more lenient than the test for class certification under Rule 23 of the Federal Rules of Civil Procedure, which demands meeting several explicit and implied requirements across the rule’s subsections in order for parties to demonstrate the need to proceed collectively.
These judicial rulings, of course, need not be the final word. There is also a role for legislatures to play in changing this landscape. To start, Congress could amend the FLSA to provide for nationwide service of process, which would alter courts’ specific jurisdiction analysis to focus on defendant companies’ contacts with the U.S. as a whole.
Alternatively, states could expand the realm of general jurisdiction by mandating implicit consent to the state’s exercise of personal jurisdiction as a cost of registering to conduct business.
In sum, while the Ninth Circuit’s decision in Harrington v. Cracker Barrel does not break new ground, it suggests a settling of two procedural trends in FLSA jurisprudence — when to issue notice and where nationwide collectives can be filed — rather than deepening circuit splits.