Eleventh Circuit Upholds Enforceability Of Class Action Waiver

by FordHarrison

Executive Summary:  The Eleventh Circuit recently held that an arbitration agreement that waives an employee's ability to bring a collective action under the Fair Labor Standards Act (FLSA) is enforceable under the Federal Arbitration Act (FAA).  See Walthour v. Chipio Windshield Repair, LLC (11th Cir. March 21, 2014).  The court rejected the plaintiffs' argument that the right to file a collective action under the FLSA is a non-waivable substantive right and that the agreement was invalid because it purported to waive that right.  The court found no contrary congressional command in the FLSA that would override the FAA's strong policy in favor of arbitration.


The plaintiffs entered into arbitration agreements with their employer, in which they agreed to arbitrate all claims arising out of their employment and to only pursue claims individually, not as a class. The agreement specifically waived the employees' ability to bring a class action in arbitration, and stated that they would not bring a claim as a plaintiff or class member in any class or representative proceeding.

Despite this language, after their employment ended, the plaintiffs brought a collective action against the employer under the FLSA, claiming the employer failed to pay them the required minimum wage and overtime and failed to maintain records required by the FLSA.

A federal trial court granted the employer's motion to compel arbitration, and the Eleventh Circuit affirmed this decision. 

FAA's Policy in Favor of Arbitration

The Eleventh Circuit found the agreements enforceable under the FAA, in light of the FAA's "liberal federal policy favoring arbitration agreements."  The court explained that Supreme Court precedent requires courts to "rigorously enforce arbitration agreements according to their terms." (quoting American Express Co. v. Italian Colors Rest. (2013)).  Further, the court noted that the "overarching purpose of the FAA . . . is to ensure the enforcement of arbitration agreements according to their terms so as to facilitate streamlined proceedings." (quoting the Supreme Court's decision in AT&T Mobility LLC v. Concepcion (2011)).  Thus, since there was no dispute that the plaintiffs' FLSA claims fell within the scope of the arbitration agreements, the court held that "the FAA standing alone, requires enforcement of the Arbitration Agreements according to their terms, which, in this case, means individual, not collective, arbitration."

No Contrary Congressional Command

The court also rejected the plaintiffs' argument that the right to bring a collective action under the FLSA is a non-waivable substantive right and that the FLSA has overridden the FAA's requirement that collective action waivers in arbitration agreements be enforced.  The court acknowledged that the FAA's requirement that arbitration agreements be enforced according to their terms may be overridden by a "contrary congressional command."  However, citing the Fifth Circuit's decision in D.R. Horton, Inc. v. NLRB, the court noted, "[i]n every case the Supreme Court has considered involving a statutory right that does not explicitly preclude arbitration, it has upheld the application of the FAA." (For more information on the Fifth Circuit's decision in D.R. Horton, please see our Legal Alert Fifth Circuit Further Strengthens Class Action Waivers with Latest DR Horton Decision.)

After examining the statutory text of the FLSA, as well as its legislative history and purposes, and Supreme Court decisions addressing the enforceability of arbitration agreements, the Eleventh Circuit could discern "no contrary congressional command" that precluded the enforcement of the plaintiffs' arbitration agreements and their collective action waivers. 

First, the court held that the FLSA contains no explicit provision precluding arbitration or a waiver of the right to a collective action under § 16(b).  Next, the court held that, based on the Supreme Court's decision in Gilmer v. Interstate/Johnson Lane Corp., as interpreted by Italian Colors Restaurant, "the text of FLSA § 16(b) does not set forth a non-waivable substantive right to a collective action."  The court noted that all of the federal appeals courts to have examined the issue have determined that § 16 does not provide for a non-waivable, substantive right to bring a collective action.  The court agreed with the Eighth Circuit's decision in Owens v. Bristol Care, Inc. that, even if Congress intended to create a "right" to class actions under the FLSA, "if an employee must affirmatively opt into any such class action, surely the employee has the power to waive participation in a class action as well." 

Additionally, the court rejected the plaintiffs' argument that it was significant that Congress provided for the procedural right to a collective action in the text of the FLSA instead of leaving it to the Federal Rules of Civil Procedure.  "Congress's decision to specifically include the procedural right to a collective action in the FLSA does not somehow transform that procedural right into a substantive right."  The court held that rather than expanding a plaintiff's substantive right, the decision to include the collective action provision actually limited a plaintiff's existing procedural rights as set forth in Rule 23, since a plaintiff could bring a class action under the FLSA without the prior consent of similarly situated employees if Congress had not included § 16(b).

Finally, the court found nothing in the FLSA's legislative history to show that Congress intended collective actions to be essential to the effective vindication of the FLSA's rights.  The court held that the enforcement of collective action waivers in arbitration agreements is not inconsistent with the FLSA.  Thus, in the absence of a contrary congressional command in the FLSA, the court found that the plaintiffs' arbitration agreements were enforceable, including the collective action waivers.

Employers' Bottom Line:

The Eleventh Circuit's decision is in accordance with recent Supreme Court decisions upholding the enforceability of arbitration agreements that include class action waivers.  The NLRB, however, continues to prosecute unfair labor practice charges against employers that implement arbitration agreements with class action waivers.  The NLRB's position is that such waivers violate employees' rights to engage in protected concerted activity under the National Labor Relations Act.  

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© FordHarrison | Attorney Advertising

Written by:


FordHarrison on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.