Fourth Circuit holds that FLSA's "consent in writing" requirement does not apply in arbitration proceeding

In LONG JOHN SILVER’S v. COLE, the Fourth Circuit considered whether an employee can be made a party to an FLSA-related civil proceeding without his consent. At base, FLSA § 16(b) contains a consent in writing provision requiring that the employee submit a written statement that he desires to be part of the class. AAA Class Rules do not require opt-in in writing, and the arbitration agreement called for the application of the class rules. LJS argued that FLSA 16(b) created a substantive right that is not waivable.

The Fourth Circuit rejected the LJS contention. The Court found "uncertainty as to whether Congress intended to apply the FLSA § 16(b) provision’s 'consent in writing' requirement in arbitration proceedings," and concluded that the arbitrator was not, therefore, bound by any "clear principle of law" in rendering the Award. The text and legislative history cited by LJS was ultimately not persuasive.

Although LJS’s references to the text and legislative history of the FLSA reassure us of Congress’s intention that the "opt-in" procedure should apply in arbitration as in court proceedings, they fail to also convince us that Congress expressly intended that the "opt-in"procedure could not be waived by the parties’ agreement to an alternate procedure.