Next to the Plaintiff’s name in a Fair Labor Standards Act (FLSA) lawsuit there are often a variation of the words “and all those similarly situated” or “and those similarly situated.” Variations on “and those similarly situated” are very dangerous words if you are a business owner. The words can turn a lawsuit brought against an employer by one employee, into a lawsuit brought against an employer by several past and present employees, who the Court forces the employer to inform of their ability to join and facilitate the process of joining. If the Plaintiff seeks to join “those similarly situated” into the lawsuit it is a two-step process. The first step is for the Plaintiff to file a motion for what is called conditional certification. Conditional certification requires the Plaintiff to prove very little and the consequences of conditional certification are severe. The Plaintiff only needs to prove that there are other employees similar to them who wish to join the case, and similar to them can have a broad definition if the employer’s attorney is unsuccessful. If conditional certification is granted a notice will go out to all employees with a similar job to the Plaintiff, past and present, for the last three years, informing them of their right to join the lawsuit and giving them a form to fill out to become a plaintiff. I am pleased to report that I have recently defeated several of these motions, saving clients millions of dollars in potential liability. However, no attorney can guarantee that they can beat every motion for conditional certification. Plaintiffs have to prove very little to be granted conditional certification. If the employee is granted conditional certification the case moves to step two. The second step of the process is that the Defendant takes discovery, which is the collection of evidence and depositions, to prove that the new employees joining the lawsuit are different from the original employee(s) who filed the lawsuit. At the end of discovery, the Defendant files a motion for decertification, arguing that the employees are distinct, not “similarly situated.” If the Defendant wins this motion, then the case goes back to the original employee(s) who filed the lawsuit. If the defendant loses then the case proceeds against the defendant with however many employees have chosen to join. The FLSA allows every lawsuit filed under it, to be filed on behalf of the employee filing it and “all those similarly situated,” it is up to the business’ attorney to prove that there are not similarly situated employees by exploiting the legal aspects of the words “similarly situated.” Not all lawsuits that have a variation of the words “and those similarly situated,” end up going through the two-step process. Sometimes the Plaintiff does not try to expand the group of Plaintiffs, but if the Plaintiff can expand the group, potential liability, and the cost to defend against the lawsuit, can exponentially increase.