26 | Developments in Equal Pay Litigation ©2023 Seyfarth Shaw LLP gives them an opportunity to join the lawsuit. The case then proceeds as a conditionally certified collective action, containing the named plaintiff(s) and all “opt-ins” who chose to join the case, until defendants are again given the opportunity to challenge certification at the decertification stage. Many employers think this two-stage process gives EPA plaintiffs a significant strategic advantage because the relatively lenient standard applied at the conditional certification stage provides an easier route to expand a case into a class-like proceeding. And as any employer who has been involved in employment class action litigation knows, once a case is certified—even conditionally certified as a collective action—the burden, costs, and stakes of that litigation increase dramatically. The nature and extent of the evidence provided in support of conditional certification will often determine the outcome. But the burden is not high; just a few declarations from named or putative plaintiffs and a few policy documents will often suffice.203 For example, in Spatz v. Lee’s Summit R-7 School District,204 a group of Field Technology Specialists, Elementary School Principals, and Elementary School Assistant Principals of a school district sought conditional certification of a collective of similarly situated female employees of the district. The complaint was later amended to include representative teacher plaintiffs, 203 See, e.g., Bertroche v. Mercy Physician Assocs., Inc., No. 18-cv-59-CJW, 2018 WL 4107909, at *3 (N.D. Iowa Aug. 29, 2018) (granting conditional certification, holding that the plaintiff was not required to show at that stage that the wage disparity was due to discrimination, nor that other potential plaintiffs are “similarly situated”; rather, it was enough merely to show that other potential plaintiffs exist who may have been discriminated against based on their gender, which defendants’ own data showed). 204 Spatz v. Lee’s Summit R-7 Sch. Dist., No. 4:20-cv-448-RK, 2021 WL 5625408 (W.D. Mo. Nov. 30, 2021).
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