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A debate has grown in recent years regarding whether the decades-old two-step collective certification process is necessary, and another federal circuit court is preparing to weigh in on the topic.
In the Seventh Circuit, the issue has come up in an age discrimination suit against pharmaceutical company Eli Lilly and Co. The Age Discrimination in Employment Act incorporates the conditional certification mechanism from the FLSA.
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Allison Powers of management-side firm Blank Rome LLP said another ruling on the issue could contribute to turning the decades-old precedent on its head.
"The issues that are involved really call into question cases that have been the gold standard since the 1980s," she said. "What we're seeing now is just maybe finally some recognition by the courts that it's untenable to manage, first of all, just all of these thousands and thousands of cases, and that really there needs to be some meaning behind the process that the district court applies."
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Powers said the trend will be clearer as more courts weigh in on the issue.
Of the many federal circuit courts, "you have two that have ruled," she said. "I think it's a materially different circumstance if there are … more."
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"Wage Cases To Watch For The Rest Of 2025," by Max Kutner was published in Law360 Employment Authority on July 7, 2025.
