Swales v. KLLM Transport Services, LLC, No. 19-60847 (5th Cir. 2021)Annotate this Case
Plaintiffs filed a collective action under the Fair Labor Standards Act (FLSA) against KLLM over a minimum wage labor dispute. The district court granted plaintiffs' certification request, applying the widely used Lusardi test, a two-step method for certifying a collective.
The Fifth Circuit declined to delineate the district court's notice-sending discretion under the Lusardi test, rejecting Lusardi's two-step certification rubric. The court explained that Lusardi has no anchor in the FLSA's text or in Supreme Court precedent interpreting it. The court noted that the word "certification," much less "conditional certification," appears nowhere in the FLSA. Instead, the court embraced interpretive first principles: (1) the FLSA's text, specifically section 216(b), which declares (but does not define) that only those "similarly situated" may proceed as a collective; and (2) the Supreme Court's admonition that while a district court may "facilitat[e] notice to potential plaintiffs" for case-management purposes, it cannot signal approval of the merits or otherwise stir up litigation. The court concluded that these are the only binding commands on district courts. Accordingly, the court vacated the district court's grant of conditional certification and remanded for further proceedings.