Continued Uncertainty Remains in Workplace Collective Actions

The Age Discrimination in Employment Act and the Fair Labor Standards Act permit workers with similar age-discrimination or wage-and-hour claims to proceed through collective actions, but workers must opt in to participate. As a result, courts must decide early in the case whether notice may be sent to other potentially affected workers.

The federal courts are divided on what plaintiffs must prove before notice may be sent to “similarly situated” workers. Most circuits continue to apply the traditional, more lenient two-step standard for preliminary collective certification, followed by a more rigorous review after discovery. See, e.g., Halle v. W. Penn Allegheny Health Sys. Inc., 842 F.3d 215, 224 (3d Cir. 2016); Harrington v. Cracker Barrel Old Country Store, Inc., 142 F.4th 678, 683-84 (9th Cir. 2025); Thiessen v. Gen. Elec. Cap. Corp., 267 F.3d 1095, 1102 (10th Cir. 2001); Morgan v. Fam. Dollar Stores, Inc., 551 F.3d 1233, 1260-61 (11th Cir. 2008). In recent years, the U.S. Courts of Appeals for the Fifth, Sixth, and Seventh Circuits have adopted differing but stricter approaches requiring a heightened showing before notice may issue. See, e.g., Swales v. KLLM Transp. Servs., LLC, 985 F.3d 430, 442-43 (5th Cir. 2021); Clark v. A&L Homecare & Training Ctr., LLC, 68 F.4th 1003, 1011 (6th Cir. 2023); Richards v. Eli Lilly & Co., 149 F.4th 901, 911-913 (7th Cir. 2025). Notably, AARP and AARP Foundation filed an amicus brief in the Seventh Circuit case, arguing in favor of the traditional, two-step standard for preliminary certification.

Despite the growing circuit split, the Supreme Court has repeatedly declined to resolve the proper standard for collective action certification. In 2026, the Court denied certiorari in two cases that would have provided uniformity and clarity to employers and employees alike. See, e.g., Eli Lilly & Co. v. Richards, 146 S. Ct. 1503 (Jan. 12, 2026); Cracker Barrel Old Country Store, Inc. v. Harrington, 146 S. Ct. 1596 (Feb. 23, 2026).

Impact     

The Supreme Court’s refusal to intervene means employers and employees face a fragmented, jurisdiction-dependent system regarding when and how evidence of being “similarly situated” must be presented before notice goes to potential opt in plaintiffs. As illustrated above, potential collective action members in the Fifth, Sixth, and Seventh Circuits face heightened hurdles before they may be notified of and join a lawsuit, while those in the Third, Ninth, Tenth, and Eleventh Circuits benefit from a more accessible two-step approach. The Court’s recent denials of certiorari leave intact lower court rulings that limit nationwide worker actions, impacting older adults seeking remedies for age discrimination and wage and hour violations.

Rachel N. Lokken, RLokken@aarp.org