Seventh Circuit Adopts More Flexible Standard for Issuing Notice in Collective Actions
At a Glance Seventh Circuit rejects “lenient” Lusardi standard for issuing notice of collective actions and introduces more flexible approach. Under the new approach, plaintiffs must make a threshold showing that there is a material factual dispute as to whether the proposed collective is similarly situated, and defendants can submit rebuttal evidence, which the district courts must consider. The opportunity to present opposing evidence renders an employer’s initial factual investigation even more critical, as the evidence presented in rebuttal to a plaintiff’s evidence can avoid notice altogether or greatly limit its scope. In a significant shift from longstanding precedent, the U.S. Court of Appeals for the Seventh rejected the widely used two-step “ Lusardi ” 1 framework for issuing notice in collective actions under Section 216(b) of the Fair Labor Standards Act (FLSA), which applies to claims under the FLSA, the Age Discrimination in Employment Act (ADEA), a...