Cracker Barrel Old Country Store, Inc. v. Andrew Harrington, et al.

Ninety percent of the 163.4 million workers in the United States are covered by the Fair Labor Standards Act,1 one of the few statutes in which Congress chooses to impose express conditions on collective litigation, rather than leaving the matter to the rules of civil procedure. In § 16(b) of the Act as amended (codified at 29 U.S.C. § 216[b]), Congress allowed actions brought on behalf of coworkers who are “similarly situated” to named parties, but only if those coworkers elect in writing to join. The case law interpreting § 16(b) is in total disarray. First, the circuits are split five ways in how to interpret § 16(b). Second, only one of the five is consistent with last term’s unanimous decision in E.M.D. Sales v. Carrera, 604 U.S. 45 (2025). The question presented is: Whether a district court may authorize notice inviting joinder to an FLSA collective action before a plaintiff shows by a preponderance of the evidence that the members of the collective receiving notice are “similarly situated” to the named plaintiff within the meaning of 29 U.S.C.

1. See U.S. Bureau of Labor Statistics, Employment Status of the Civilian Population by Sex and Age (Aug. 2025) (163.4 million U.S. workers) (available on the internet at https://www. bls.gov/news.release/empsit.t01.htm); U.S. Dep’t of Lab., Wage & Hour Div., Small Entity Compliance Guide to the Fair Labor Standards Act ’s Exemptions for Executive, A dministrative, Professional, Outside Sales, and Computer Employees (April 24,

2. (FLSA covers 143 million workers) (available on the internet at https://www.dol.gov/agencies/whd/ overtime/rulemaking/smallentity-compliance-guide?utm_source=chatgpt.com).