Ninth Circuit Hands Employers Split Decision on Key Procedural Aspects of FLSA Collective Actions

Takeaways • The Ninth Circuit joins the solid majority of federal circuits in holding the U.S. Supreme Court’s Bristol-Myers decision applies to FLSA collective actions, thereby making it much harder for employees to forum shop when pursuing nationwide collective actions. • However, the appellate panel preserved the circuit’s use of two-stage “conditional” certification of putative FLSA collective actions, which typically lets plaintiffs proceed on a collective basis based on a minimal showing they are similarly situated to other employees on whose behalf they seek to proceed. • The court also held out the possibility that employees who may have binding arbitration agreements preventing them from proceeding with their claims in court could receive notice of a pending collective actio