Employees Who Have Signed Arbitration Agreements Waiving Their Rights to Participate in an FLSA Collective Action Need Not Be Provided Opt-in Notice


The U.S. Court of Appeals for the Seventh Circuit established a standard for when a court may authorize notice to potential plaintiffs of their opportunity to join a “collective action” (i.e., a lawsuit on behalf of a group of similarly situated employees) under the Fair Labor Standards Act, even where the employees have allegedly entered into mutual arbitration agreements that waived their rights to join the action.

In Bigger v. Facebook, Inc., the defendant-employer argued that notice of the opportunity to join the collective action should not be delivered to employees who entered arbitration agreements that waived their right to join such action. The Seventh Circuit, however, set forth the framework under which the question of whether such notice may nonetheless be provided, finding that notice may be authorized “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 noted that courts are not required to simply take defendants at their word that such agreements exist. If the defendant employer is able to make the showing that the employees, in fact, entered into such agreements, however, then the court would not be permitted to authorize notice.