FLSA Collective Action Provision, Too, Does Not Make Mandatory Bilateral Arbitration Agreements Unenforceable

In our sister blog, ADR: Advice from the Trenches, Gil Samberg explains the Sixth Circuit's ruling, applying the Supreme Court's reasoning in the recent Epic Systems case, that the "collective action" provision of the FLSA does not render a collective action waiver in an arbitration agreement unenforceable. This decision — while it only applies to states in the Sixth Circuit (Kentucky, Michigan, Ohio, and Tennessee) — seemed to be the obvious extension of Epic Systems and demonstrates that courts are loathe to read federal statues as forbidding arbitration unless they clearly express an intent to do so. As the Sixth Circuit noted, the FLSA's collective action provision "gives employees the option to bring their claims together," but it "does not require employees to vindicate their rights in a collective action." While it remains to be seen how other federal appeals courts will rule on this issue, employers can probably rest assured that their agreements mandating