Paul DeCamp, Member of the Firm in the Employment, Labor & Workforce Management practice, in the firm’s Washington, DC office, was quoted in Law360 Employment Authority, in “Workplace Arbitration Gets Renewed Scrutiny in Biden Era,” by Jon Steingart. (Read the full version – subscription required.)
Following is an excerpt:
President Joe Biden faces pressure from worker advocates to make good on a promise to clamp down on arbitration agreements that keep workers from litigating wage and hour claims in court. …
[I]n Waffle House v. EEOC, [the Supreme Court] held that an employee’s arbitration agreement couldn’t stand in the way of the U.S. Equal Employment Opportunity Commission taking an employer to court to carry out the agency’s statutory mandate to vindicate a public interest.
Paul DeCamp, a former administrator of the DOL’s Wage and Hour Division who advises employers as co-chair of Epstein Becker Green’s wage and hour practice group, said plaintiffs attorneys may appreciate the Department of Labor filing an amicus brief backing their legal arguments. But he questioned whether they would welcome the agency to file enforcement actions on behalf of their clients because there would be no way for them to collect attorney fees.
“If an individual brings a claim in court, the employer moves to compel arbitration, and the court grants that motion, it doesn’t seem likely that plaintiff’s counsel will want the Department of Labor, which would not be bound by the arbitration agreement, to bring an action on behalf of that individual plaintiff,” DeCamp said. “If that were to happen, then that would cut the plaintiff’s counsel out of economic recovery.”
DeCamp noted that although the FLSA gives the DOL authority to file an enforcement action on behalf of a worker, doing so cuts off the individual’s right to sue. He questioned whether the DOL would even have authority to sue an employer if the worker at issue had already sued. …