When a plaintiff seeks to send notification of his Fair Labor Standards Act claim to a collective class of potential plaintiffs, the district court must authorize which recipients may receive this notice. Ordinarily, the court determines that employees of the same position or under the same employer receive collective action notice, but may a district court authorize mailing of notice to employees proven to have signed mandatory arbitration agreements? In Bigger v. Facebook, Inc., the Seventh Circuit Court of Appeals held that if a defendant-employer proves that specific employees have entered mandatory arbitration agreements, they may not receive FLSA court notice in a collective action claim. Moreover, the court must afford all parties the opportunity to prove or disprove the existence and validity of these agreements through the Seventh Circuit’s new framework mandating an initial stage of discovery. Previously, the Seventh Circuit lacked any formalized framework to make this determination, leaving complete discretion over the formation of collective actions to district courts. Without guidance, many district courts adopted a two-step certification process that admitted a wider group into a collective action before excluding specific opt-in plaintiffs. The Seventh Circuit joins the Fifth Circuit in addressing the issue of whether employees are bound by mandatory arbitration agreements at this earlier point in litigation. This decision, however, understated how this new framework aligns district courts with the Supreme Court’s decision in Hoffman-LaRoche, Inc. v. Sperling and the goals of the Federal Arbitration Act and the Fair Labor Standards Act. This article discusses how the district courts’ role in determining the scope of FLSA collective actions mandates this result in Bigger v. Facebook, Inc."
Facebook Message Not Delivered: Employers May Challenge Authorization of FLSA Collective Action Notice Arbitration-Bound Employees,
Seventh Circuit Rev.
Available at: https://scholarship.kentlaw.iit.edu/seventhcircuitreview/vol16/iss1/3