Seventh Circuit rules on a court’s authority to issue notice to members of an FLSA collective action subject to contested arbitration agreements

Take a look at the Seventh Circuit's January 24 decision in Bigger v. Facebook, Inc., No. 19-1944. The Seventh Circuit succinctly sets out the dispute and its holding:

This case presents the question whether a court may authorize notice to individuals [who are putative members of a Fair Labor Standards Act "collective" action and] who allegedly entered mutual arbitration agreements, [purportedly] waiving their right to join the action.

Facebook employee Susie Bigger sued Facebook for violations of the FLSA overtime-pay requirements. She brought the action on behalf of herself and all other similarly situated employees. The district court authorized notice of the action to be sent to the entire group of employees Bigger proposed. Facebook argued this authorization was improper because many of the proposed notice recipients had entered arbitration agreements precluding them from joining the action.***  

We hold that when a defendant opposing the issuance of notice alleges that proposed recipients entered arbitration agreements waiving the right to participate in the action, a court may authorize notice to those individuals unless (1) no plaintiff contests the existence or validity of the alleged arbitration agreements, or (2) after the court allows discovery on the alleged agreements’ existence and validity, the defendant establishes by a preponderance of the evidence the existence of a valid arbitration agreement for each employee it seeks to exclude from receiving notice.

The Seventh Circuit's decision could assist advocates seeking to bring large numbers of individual arbitration claims by similarly-situated workers. For more info, see this article by Erin Mulvaney (possibly behind a paywall).

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