Second Circuit Declines to Rehear Decision Allowing Class Action Waivers in FLSA Suits
The question concerning the enforceability of class action waivers in arbitration agreements to foreclose an employee’s ability to litigate collective actions under the Fair Labor Standards Act (“FLSA”) has been answered affirmatively in New York by the Second Circuit Court of Appeals. On October 15, 2013, the Second Circuit rejected a rehearing petition from Stephanie Sutherland, a former Ernst & Young LLP employee, who challenged a class action wavier in an arbitration agreement that barred her from pursuing a collective action for overtime pay under the FLSA. The decision lets stand the Circuit Court’s August 9th panel ruling that an employee can be required as a condition of employment to waive, pursuant to an arbitration agreement, the right to bring a collective or class action.