Brooke Clark v. A&L Homecare &Training Ctr., 22-3101

Background

Plaintiffs (former home‑health aides) sued A&L under the FLSA and Ohio law for unpaid overtime and under‑reimbursed vehicle expenses.
Plaintiffs moved for court‑approved notice to three groups of other A&L employees so they could opt in; the district court applied the common two‑step (Lusardi) approach and a “fairly lenient” showing and conditionally certified two groups.
The district court denied notice to employees who left more than two years earlier and to employees said to have signed arbitration agreements.
The district court certified its order for interlocutory appeal; Sixth Circuit granted permission to appeal and for plaintiffs to cross‑appeal.
The Sixth Circuit rejected both Lusardi’s “conditional certification” framing and the Fifth Circuit’s Swales approach, adopted a new “strong likelihood” standard (greater than a genuine issue but less than preponderance) for sending court‑approved notice, vacated the district court’s order, and remanded for reconsideration under that standard.
The panel held that claims of arbitration agreements and statute‑of‑limitations defenses are admissible as part of the similarity inquiry; Judge Bush (concurring) urged equitable tolling for late notice; Judge White concurred in part and dissented in part opposing the heightened standard.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Standard for sending court‑approved notice of FLSA collective action	Lusardi’s two‑step approach with a “modest/lenient” factual showing suffices	Court must find employees are actually similarly situated (preponderance) before notice (Swales)	Rejected both; adopt a “strong likelihood” standard (between genuine issue and preponderance) for issuing notice
Use of the term “certification”/effect of notice	Calling it “conditional certification” is appropriate practice	Term imports Rule 23 class‑action connotations and is misleading	Reject use of “certification”; notice does not change case character—notice merely facilitates opt‑in opportunities
Effect of alleged arbitration agreements on notice eligibility	Arbitration agreements should not automatically bar notice	Employer argued district court must exclude or treat as dispositive	Arbitration agreements are evidence like any other; courts should consider them in the similarity showing under the strong‑likelihood standard, not treat them as per se disqualifying
Statute of limitations and tolling concerns	Plaintiffs argued district courts should not treat limitations defenses as dispositive at notice stage; some urged tolling	Defendants warned higher notice standards protect against stale claims and mass solicitation	Limitations defenses are part of similarity analysis; majority remanded to apply strong‑likelihood standard and declined to adopt automatic tolling, though concurrence urged equitable tolling be considered on remand

Key Cases Cited

Hoffmann‑La Roche Inc. v. Sperling, 493 U.S. 165 (1989) (recognizes district court discretion to facilitate notice to “potential plaintiffs” in collective actions)
Lusardi v. Xerox Corp., 118 F.R.D. 351 (D.N.J. 1987) (origin of the two‑step “conditional certification” approach)
Swales v. KLLM Transport Servs., L.L.C., 985 F.3d 430 (5th Cir. 2021) (required a preponderance/actual‑similarity finding before court‑approved notice)
Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66 (2013) (the sole consequence of conditional certification is sending court‑approved notice)
Monroe v. FTS USA, LLC, 860 F.3d 389 (6th Cir. 2017) (abuse‑of‑discretion review for notice determinations)
Pierce v. Wyndham Resorts, Inc., 922 F.3d 741 (6th Cir. 2019) (similarity inquiry examines tasks, policies, and defenses that may affect comparability)
Canaday v. Anthem Companies, Inc., 9 F.4th 392 (6th Cir. 2021) (FLSA collectives require opt‑in; similarly situated standard explained)
Am. Pipe & Constr. Co. v. Utah, 414 U.S. 538 (1974) (class‑action tolling principle discussed in concurrence advocating equitable tolling)