Eleventh Circuit Refuses To Enforce Post-Suit Arbitration Agreements Based Upon Employer Misconduct

The British have a phrase "too clever by half" to describe complex schemes that ultimately won't work.

We all know from cases such as Concepcion, Stolt-Nielsen, Italian Colors, and their progeny that arbitration agreements are far more likely to be enforced today than only a year or two ago, particularly in the class action context.  So, what if you haven't revised your arbitration agreements or don't even have one and a class action suit is filed?  Can you have your current employees sign them and then compel arbitration on an individual basis?  Maybe so, but not the way the employer attempted in a recent Eleventh Circuit case.

In Billingsley v. Citi Trends, Inc., Case No. 13-15261 (11^th Cir. Mar. 25, 2014) (unpublished), the employer, a retail clothing chain, faced a putative collective action under the FLSA brought by a store manager who claimed that she was misclassified as exempt from overtime.  After the filing of suit, and after the initial scheduling