In Conners v. Gusano’s Chicago Style Pizzeria, plaintiffs, former employees of defendant, brought a collective action alleging violations of the Fair Labor Standards Act. Defendant responded by implementing a binding arbitration policy on current employees that specifically prevented current employees from joining plaintiffs in the collective action. The district court enjoined defendant from enforcing the arbitration agreement as to any current employees who chose to join the litigation. On interlocutory appeal, the Eighth Circuit vacated the order, finding that the former employees lacked standing to challenge the current employees’ arbitration agreements.
In Avilez v. Pinkerton Government Services, the district court certified various classes of current and former employees in an action under the California Labor Code. The employer petitioned the Ninth Circuit under Rule 23(f), asserting that the lower court abused its discretion by certifying classes that included employees who signed employment agreements containing class action waivers. The Ninth Circuit agreed, and vacated the certification order to the extent that it included employees who signed class action waivers. In so holding, the Circuit Court reasoned that because the named plaintiff’s arbitration agreement did not contain a class action waiver, she was an inadequate representative for and her claim lacked typicality as to putative class members who had signed such waivers.