“….conducting a wage and hour audit and educating management on wage and hour best practices…(and) requiring employees to sign arbitration agreements containing class action waivers…(can help) prevent employees from asserting wage and hour claims in the form of a class action lawsuit…”
Class action waivers received a boost by the U.S. Supreme Court last year in a widely publicized consumer class action case in which the court found them to be legally enforceable in a mandatory arbitration agreement. The AT&T Mobility v. Concepcion decision has caused some employers to consider including class action waiver language in employee arbitration agreements to prevent class/collective wage and hour lawsuits. However, courts are still struggling with the issue of whether the right to proceed as a class/collective action can be waived under the Fair Labor Standards Act.
Waivers will be more likely to be upheld where they contain provisions providing fair relief for the employee, such as:
- Employee chooses the venue for dispute resolution;
- Employee is entitled to injunctive relief and punitive damages, if applicable; or
- Employer pays some or all of the costs of the dispute resolution and/or waives claims for its own costs and fees.