Seventh Circuit Reshapes Collective Action Notice (Slightly)

When employees face the problem of not being paid appropriate wages for their work, the ability to come together in a collective action is one of the most powerful tools available. But whether a court allows notice to be sent to other employees often decides if a case has real momentum. A recent decision from the U.S. Court of Appeals for the Seventh Circuit reshapes the rules for how federal district courts in Illinois, Wisconsin, and Indiana decide whether that notice goes out.

Collective Actions and Richards v. Eli Lilly

The Fair Labor Standards Act (FLSA) is the federal law that sets basic workplace protections like minimum wage, overtime pay, and recordkeeping rules. The law doesn’t just apply to one worker at a time. If many employees are affected by the same unlawful practice—say, being denied overtime or forced to work off the clock—they can bring their claims together in what’s called a collective action.

Unlike a class action (where you’re automatically included unless you opt out), collective actions require workers to affirmatively opt in. That means the court must often send notice to other employees, letting them know about the lawsuit and their right to join. Whether that notice goes out can determine whether hundreds or thousands of employee ever get paid properly for their work.

In Richards v. Eli Lilly, a longtime employee alleged she was passed over for promotion because of her age and sought to represent other older workers facing the same issue. Under the decades-old rule, courts applied a very lenient standard: employees only needed to make a modest factual showing to send notice. Employers often complained about the standard.

The Seventh Circuit said that approach was too one-sided. The court rejected stricter rules from other circuits that required workers to prove their claims almost fully before notice could be issued. Instead, the Seventh Circuit adopted a middle-ground approach:

• Employees must provide some evidence that they and others were victims of a common unlawful policy or practice.
• Employers get a chance to rebut that evidence before notice goes out.
• Courts must decide if there is at least a material factual dispute over whether employees are similarly situated.
• Judges have flexibility: in some cases, notice can go out early; in others, limited discovery may happen first.

While the Richards decision may cause some attorneys to change their motion practices, many experienced litigators would argue that the Seventh Circuit’s decision doesn’t really change much, and that the process outlined in Richards is how most district courts have always considered and decided a motion for conditional certification. 

What This Means for Employees

For employees, the Richards decision means the path to joining forces with coworkers just got a slightly more demanding. Courts will no longer green-light notice based on bare allegations. That doesn’t shut the door by any means, but it means an employee’s voice carries more weight when backed by some proof. It’s always best to bring as much evidence to the court as possible when requesting court-authorized notice to similarly situated employees.

Think about how this plays out in the workplace. If your employer regularly denies overtime, it may no longer be enough to simply say, “We all worked off the clock without pay.”

Now you and your attorney may need to gather pay records, text messages from managers, or sworn statements from colleagues that show a consistent pattern. The stronger the early evidence, the more likely a court will allow notice to go out to others in the same situation.

The same goes for discrimination. Maybe you were passed over for promotion in favor of a younger hire, or noticed older workers consistently being sidelined.

Your individual story matters, but under Richards, it takes a little more—patterns, policies, or multiple accounts that show it wasn’t just you. Those details can turn your experience into a collective claim that other workers can join.

You should also know that time is not on your side. Under the FLSA, the clock keeps running until you opt in to a collective action. If notice is delayed or never issued, you could lose part of your claim.

Employers know this and will use Richards to argue for more delay or to shut down notice entirely. That’s why acting quickly before deadlines cut off your rights is critical.

Protect Your Rights With Sommers Schwartz

The takeaway is simple: your rights are still protected, but the first step is slightly higher. Don’t assume you can wait for the court to notify your coworkers. If you believe your employer is violating wage laws or discriminating, the best move is to talk to an attorney now, gather what evidence you can, and be ready to stand alongside others when the time comes.

If you and your coworkers believe you’ve been subjected to illegal workplace practices, our attorneys are ready to evaluate your claims and fight for your rights. Contact us today for a confidential consultation.