Abstract
Since the 1980s, federal district courts have applied a lenient standard under § 216 of the Fair Labor Standards Act of 1938 (FLSA), allowing plaintiffs to more easily notify “similarly situated” coworkers of an employer’s potential minimum wage and overtime violations. But recent circuit court decisions have contested this lenient standard. And today, three approaches exist for sending notice to “similarly situated” coworkers hoping to form an FLSA collective action: one lenient, one strict, and one attempting to chart a middle ground. Challenges to the lenient standard threaten workers’ abilities to vindicate their rights and uphold their inherit dignity, eroding fairness in the economy.
Restoring the proper power relations between an employee and their employer is a critical element in shepherding a robust and equitable twenty-first century economy. The FLSA provides the necessary framework to do so; therefore, the courage marshaled by President Franklin Delano Roosevelt and the progressive movement of the New Deal era must be revived to counter the challenges of a “Second Gilded Age” and safeguard our democracy.
This Comment argues that the Supreme Court can best protect workers most vulnerable to unjust pay by adopting the lenient notice standard set forth in Lusardi v. Xerox Corp. for FLSA collective action cases, a standard used by district courts nationwide for nearly four decades. In the context of workers’ rights, then, Goldilocks was wrong: A lenient standard is, in fact, “just right.”
Recommended Citation
Maguire Tausch,
Defying Goldilocks: Why the FLSA Collective Action Notice Standard Set Forth in Lusardi is “Just Right”,
74
Emory L. J.
1513
(2025).
Available at:
https://scholarlycommons.law.emory.edu/elj/vol74/iss6/3