On October 4, 2016, the Fifth Circuit in Reyna v. International Bank of Commerce instructed district courts that when the issue of arbitrability is raised in a prompt motion to compel, it should be decided at the outset of the litigation—even prior to deciding conditional certification in FLSA collective actions. Reyna builds upon the Fifth Circuit’s recent decision in Kubala v. Supreme Production Services, Inc., ensuring that courts adhere to the strong federal policy favoring arbitration.

Carlos Reyna (“Reyna”) brought a collective action under the FLSA against International Bank of Commerce (“IBC”) contending that IBC failed to properly pay overtime to its bank tellers. IBC moved to dismiss the complaint or, in the alternative, to compel arbitration of Reyna’s claim. The district court denied the motion to compel “concluding that it could not consider the applicability of any arbitration agreement until later in the certification process for a FLSA collective action.”

IBC appealed under 9 U.S.C. § 16(a)(1)(C), which provides for immediate appeal of an order denying a motion to compel arbitration. The Fifth Circuit reversed and held that “the district court was required to address the arbitrability of Reyna’s claim at the outset of the proceedings, prior to considering conditional certification.” The court reasoned: “To hold otherwise would present a justiciability issue: a court could conditionally certify a collective action solely on the basis of a claim that the plaintiff was bound to arbitrate and was therefore barred from bringing in court in the first place.”

Reyna neither disputed that he had entered into the agreement nor raised any challenges to its validity. His only argument, raised for the first time on appeal, was that the arbitration agreement did not apply to FLSA collective actions because it explicitly referred only to “class actions.” In a footnote, the court stated it considered this argument waived. Regardless, it would be a dispute over scope—an issue that was explicitly delegated to the arbitrator in the arbitration agreement, along with the threshold question of arbitrability.

Accordingly, the Fifth Circuit reversed the district court’s judgment and remanded with instructions to refer the dispute to arbitration. This opinion reinforces the “national policy favoring arbitration” and bodes well for employers seeking to enforce arbitration agreements entered into with their employees. Reyna reminds us that employers facing collective actions should immediately investigate whether an arbitration agreement exists and, if so, promptly move to compel arbitration in order to foreclose the possibility of a premature motion for conditional certification. Reyna provides another lesson for employers when drafting arbitration agreements: it is best practice to explicitly state applicability to both class and collective actions.

Photo of Nicole Eichberger Nicole Eichberger

Nicole A. Eichberger is a partner in the Labor and Employment Law Department and head of the New Orleans office. She is a member of the Class & Collective Actions and Wage and Hour Groups. Nici is an experienced trial lawyer and represents…

Nicole A. Eichberger is a partner in the Labor and Employment Law Department and head of the New Orleans office. She is a member of the Class & Collective Actions and Wage and Hour Groups. Nici is an experienced trial lawyer and represents clients in all types of employment-related matters, from single-plaintiff and complex employment to large, complex class and collective actions alleging discrimination, non-compete violations, and wage and hour disputes.

Nici has significant experience assisting clients in the defense of numerous class and collective actions. She frequently counsels employers, fiduciaries, and trustees on employment, wage and hour and benefit issues.

In addition to her litigation practice, Nici assists in conducting workplace investigations and audits related to discrimination, managerial training, non-competes and employee classification. She is adept to counseling clients on a wide array of issues including reviewing and drafting employee handbooks, wage and hour issues, employee leave and training policies.

She is a member of the Firm’s eDiscovery Group and advises clients on eDiscovery matters, including day-to-day preservation, investigations and litigation strategies.

Nici recently completed a three-year term was on the ABA’s Standing Committee on Pro Bono & Public Service and serves as the Pro Bono Co-Coordinator for Proskauer’s New Orleans office. She is a prolific writer, frequently contributing to Proskauer’s Law and the Workplace Blog and a sought-after speaker on collective/class action topics.