In Tiffany Ryan v. JPMorgan Chase & Co., et al.
(Case No. 12 CV 4844 (VB)), Southern District Judge Vincent
Briccetti held, like many judges before him, that arbitration
agreements may preclude a FLSA collective action.
When Ryan was hired , she signed an arbitration agreement
containing the following language:
CLASS ACTION/COLLECTIVE ACTION WAIVER: All Covered Claims under
this Agreement must be submitted on an individual basis. No claims
may be arbitrated on a class or collective basis. Covered Parties
expressly waive any right with respect to any Covered Claims to
submit, initiate, or participate in a representative capacity or as
a plaintiff, claimant or member in a class action, collective
action, or other representative or joint action, regardless of
whether the action is filed in arbitration or in court.
Furthermore, if a court orders that a class, collective, or other
representative or joint action should proceed, in no event will
such action proceed in the arbitration forum. Claims may not be
joined or consolidated in arbitration with disputes brought by
other individual(s), unless agreed to in writing by all
Ryan filed a FLSA collective action and JPMorgan Chase moved to
dismiss the action, or in the alternative stay it, and to compel
arbitration of Ryan's claim on an individual basis. After
mentioning in a footnote that the Court of Appeals for the District
of Columbia Circuit recently vacated D.R. Horton, 357
N.L.R.B. No. 184, 2012 WL 36274 (holding that arbitration
agreements cannot prevent employees from filing class/collective
actions) because it was decided by an unconstitutionally
constituted panel of the NLRB, the court made the following
One, "collective action waivers are not per se
unenforceable due to the "FAA's 'overarching
purpose' of 'ensur[ing] the enforcement of arbitration
agreements according to their terms so as to facilitate streamlined
Two, although Ryan asserted the arbitration agreement
prevented her from vindicating her FLSA rights, the class action
waiver "is fair, permits plaintiff to vindicate her statutory
rights under the FLSA, does not hinder her ability to recover
attorney's fees or costs, and comports with public policy
favoring arbitration and honoring private contracts" (also,
Ryan could not prove that arbitration would be prohibitively
And three, "this Court joins numerous other courts in
finding the NLRA (in D.R. Horton) does not determine
whether a plaintiff has a right to bring a collective action under
Bottom line, a well-written arbitration agreement may preclude
class or collective actions (employers, however, most likely will
be responsible for paying the hourly rate of the chosen
arbitrator), and the D.R. Horton board decision is not
receiving much support from judges around the country.
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The Fair Labor Standards Act requires employers to compensate employees for the work that they were hired to perform, but it exempts "preliminary" and "postliminary" activities that are not "integral and indispensable" to the employees’ "principal activity or activities."
In an earlier article, I wrote about the pending proposed amendments to the Federal Rules of Civil Procedure on e-discovery, and what the new Rules seem to get right as far as improving certain procedures.