The Fair Labor Standards Act (FLSA) requires employers to pay minimum and overtime wages and allows a plaintiff to bring a “collective action” on behalf of “similarly situated” employees. Before proceeding as a collective action, the court determines whether the employees in the collective action are similarly situated. If so, the employees receive notice of the litigation and must then opt-in to participate.

Many courts apply a lenient standard, which typically results in notice being sent to employees. The Sixth Circuit, which covers Kentucky, Michigan, Ohio, and Tennessee, recently rejected a lenient standard and adopted a new standard under which the plaintiff must show a “strong likelihood” that the employees are similarly situated to each other.

The Sixth Circuit’s recent decision is a step toward leveling the playing field and provides employers a more realistic chance of defeating notice to opt-in plaintiffs.