38 | Developments in Equal Pay Litigation 2026 ©2026 Seyfarth Shaw LLP certify a class action under Title VII and Rule 23 of the Federal Rules of Civil Procedure, or their state-law analogs.256 1. Recent Cases Involving Collective Action Certification Section 216(b) of the FLSA allows an action under the EPA to proceed “by any one or more employees for and on behalf of himself or themselves and other employees similarly situated.”257 The only statutorilymandated procedural prerequisite to bringing a collective action is that the party plaintiff must consent in writing to be the party plaintiff, and that consent must be filed in the court in which such action is brought.258 Although § 216(b) is silent as to how the collective action certification issue should be analyzed, most district courts use a two-step approach.259 The first stage is conditional certification, where the court does not make any final decision as to whether a collective action is appropriate. At the more onerous secondstage analysis, the court considers the important facts learned through discovery to determine which putative plaintiffs, if any, are similarly situated to the existing plaintiffs.260 256 Shara v. Binghamton Precast & Supply Corp., No..3:23-CV-0135, 2024 WL 4417134, at *5 (N.D.N.Y Oct. 4, 2024) (holding that Federal Rule 23 should not apply to plaintiff’s EPA claim). 257 See 29 U.S.C. § 216(b) (providing a private right of action “by any one or more employees for and on behalf of himself or themselves and other employees similarly situated”). 258 Id. 259 See Knox v. John Varvatos Enters., Inc., 282 F. Supp. 3d 644, 652-53 (S.D.N.Y. 2017) (citing Hoffmann–La Roche Inc. v. Sperling, 493 U.S. 165 (1989); Braunstein v. E. Photographic Labs., Inc., 600 F.2d 335, 336 (2d Cir. 1978); Damassia v. Duane Reade, Inc., No. 04-cv-8819(GEL), 2006 WL 2853971, at *2 (S.D.N.Y. Oct. 5, 2006)). 260 Id. at 654.
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