Aeryka Fausett
92 Geo. Wash. L. Rev. 273
Collective actions provide employees with an important opportunity to challenge their employers’ alleged violations of workplace wage and hour laws under the Fair Labor Standards Act (“FLSA”). Unfortunately, unlike Rule 23 Class Actions, collective actions lack formal guidelines. Therefore, parties disagree on many of the important procedural hurdles that must be resolved before a court examines a claim on its merits. The addition of arbitration agreements has further complicated FLSA procedures, particularly at the notice stage, where plaintiffs and defendants often disagree about whether arbitration-bound employees should receive notice of a pending action.
Although several circuit and district courts have attempted to address the provision of notice to arbitration-bound individuals, these judicial efforts have come up short. This Note argues that the Supreme Court, pursuant to the Rules Enabling Act, should adopt a new Federal Rule of Civil Procedure to address this notice issue. The Proposed Rule would balance plaintiff and defendant’s interests by allowing courts to authorize notice to all “similarly situated” individuals, while still leaving room for defendants to present a defense that individuals with valid arbitration agreements cannot be joined to the action. Ultimately, this Proposed Rule will bring collective action notice procedures back into alignment with the purpose of the FLSA and the Supreme Court’s pronotice decision in Hoffmann-La Roche v. Sperling.
