On May 18, 2012, NELA, its public interest organization, The Employee Rights Advocacy Institute For Law & Policy, and the National Employment Law Project (NELP), filed an amicus brief urging the U.S. Court of Appeals for the Second Circuit to affirm the district court’s rejection of a collective action ban in an arbitration agreement. In this case, Judge Kimba Wood of the Southern District of New York held that Ernst & Young’s prohibition of class and collective actions precludes employees from effectively vindicating their statutory rights under the Fair Labor Standards Act (FLSA). This is the second case involving collective action bans in the FLSA context in which NELA, The Institute and NELP have filed an amicus brief before the Second Circuit in as many months.
Our amicus brief highlights the important national public policies that support the availability of collective actions under FLSA. We argue that depriving workers of their ability to enforce their rights fully to be paid minimum wage and overtime pay by prohibiting collective actions in any forum undermines the wage protection policies of the FLSA, rewards unfair competition by encouraging employers to engage in wage theft, and violates the public policy Congress sought to implement through the FLSA. We further contend that the statutory right of employees to act collectively is an integral part of vindicating their rights under the FLSA, promotes the broad remedial purposes of the FLSA, and supplements the enforcement powers of the U.S. Department of Labor. Finally, we assert that the U.S. Supreme Court’s arbitration jurisprudence is not to the contrary because the Court has always recognized the need to allow the vindication of federal statutory rights and because the Federal Arbitration Act’s policy favoring arbitration does not trump the FLSA’s purposes. This is particularly true because the FLSA was enacted later in time than the FAA.
Authors: Dan Getman, Michael J.D. Sweeney and Lesley Tse (Getman & Sweeney PLLC)