Stirring Up Worker Litigation: Why Courts Should Notify Arbitration-Bound Plaintiffs of FLSA Collective Actions
Peter Rawlings
When an employer violates minimum wage and overtime laws, the Fair Labor Standards Act (FLSA) empowers a worker to bring a collective action on behalf of themselves and their affected coworkers. As an early step in such suits, courts authorize notice to the plaintiff’s coworkers so that they can join the litigation. However, employers increasingly require workers, as a condition of employment, to agree to arbitrate such claims and waive the right to sue in court under the FLSA. Courts in several circuits have begun to go along with employers who have pointed to alleged arbitration agreements as a reason the court should not notify a plaintiff’s coworkers of an ongoing suit. This Note explains that courts should reject this reasoning and argues that preventing workers—even those purportedly bound to arbitration—from learning of a collective action is contrary to the goals of the FLSA and the Supreme Court’s original rationale for authorizing lower courts to issue notice. Rather, notifying arbitration-bound plaintiffs of FLSA collective actions will result in more efficient and effective resolutions of lawsuits alleging minimum wage and overtime violations.
