The Lost Approach to FLSA Settlement Agreements: A Freedom-of-Contract Approach

In jurisdictions that require judicial oversight of Fair LaborStandards Act settlement agreements, a question lingers: Whatexactly should judges review? Some judges have beguncategorically striking confidentiality provisions fromsettlement agreements by pointing to the purposes and goals ofthe FLSA. The academic community lauds these courts’ effortsto prevent employers from mandating employees’ silence aboutthe terms of their settlement agreements. This Note, however,makes the counterargument: confidentiality provisions shouldbe permitted in FLSA settlements agreements as a bargainingchip for employees who bring individual suits. If higher courtsin a given jurisdiction require judicial oversight of theseagreements, then the court reviewing the settlement should lookat the process that led to the settlement agreement, instead ofits substance, when assessing the agreement’s fairness.Alongside Department of Labor enforcement actions, a process-based review would address problems that confidentialityprovisions create for the national enforcement of labor rightsand would allow the suffering employee to maximize theirrecovery