GRUENDER, Circuit Judge.
Bristol Care, Inc., ("Bristol Care") appeals the denial of its motion to compel arbitration in a suit initiated by its former employee Sharon Owen asserting claims under the Fair Labor Standards Act ("FLSA") and seeking class action certification on behalf of other similarly situated current and former employees. Bristol Care contends that the district court incorrectly held that the Mandatory Arbitration Agreement ("MAA") signed by Owen and Bristol Care was invalid because it contained a class action waiver provision that prohibits Owen from arbitrating claims subject to the agreement on behalf of a class. For the following reasons, we conclude that the MAA is valid and reverse the district court's order denying Bristol Care's motion to compel arbitration.
Bristol Care, a company that operates residential care facilities for elderly residents, hired Owen as an administrator at its Cameron, Missouri facility in 2009. At the time of Owen's hiring, Owen and Bristol Care signed the MAA, which provides that Owen and Bristol Care agree "to the resolution by binding arbitration of all claims or controversies for which a federal or state court or other dispute-resolving body otherwise would be authorized to grant relief whether arising out of, relating to or associated with ... any ... legal theory that Employee may have against the Company or that the Company may have against the Employee." The MAA further provides that it applies to "claims for wages or other compensation," as well as "claims for violation of any federal ... statute ... including but not limited to ... the Fair Labor Standards Act...." The agreement also contains a waiver that prohibits the parties "from arbitrating claims subject to [the] Agreement as, or on behalf of, a class" (the "class waiver"). The MAA, however, "does not waiv[e the] right to file a complaint with the U.S. Equal Employment Opportunity Commission ... or any other federal, state or local agency designated to investigate complaints of harassment, discrimination, other statutory violations, or similar claims."
In September 2011, Owen initiated this action against Bristol Care, alleging — on behalf of herself and other similarly situated current and former employees — that the company deliberately misclassified administrators like herself as "exempt" employees for the purposes of state and federal overtime laws, including the FLSA. Owen alleged that Bristol Care required these employees to work more than forty hours per week without overtime compensation. Bristol Care moved to stay district court proceedings and compel arbitration in accordance with the MAA and the Federal Arbitration Act ("FAA"). See 9 U.S.C. §§ 3-4. The district court denied Bristol Care's motion, holding that, although Owen's allegations fell within the scope of the agreement, the MAA was nonetheless invalid because of the class waiver. In reaching this conclusion, the district court explained that the Supreme Court's decision in AT & T Mobility LLC v. Concepcion, 563 U.S. ___, 131 S.Ct. 1740, 179 L.Ed.2d 742 (2011), upholding the enforceability of a class waiver in a consumer contract, was not controlling in
On appeal, Bristol Care contends that neither the language nor legislative history of the FLSA indicates that the class waiver is impermissible, that other courts have found that the FLSA does not prohibit the waiver of class actions in an arbitration agreement, and that allowing class waivers is consistent with pro-arbitration Supreme Court precedent. Bristol Care also argues that the district court erred in relying on D.R. Horton and Chen-Oster.
This court reviews a determination concerning the arbitrability of a dispute de novo. Faber v. Menard, Inc., 367 F.3d 1048, 1051 (8th Cir.2004). Section 2 of the FAA provides that "[a] written provision in any ... contract ... to settle by arbitration a controversy thereafter arising out of such contract ... shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract." 9 U.S.C. § 2. The Supreme Court has stated repeatedly that this provision establishes a "liberal federal policy favoring arbitration agreements." CompuCredit Corp. v. Greenwood, 565 U.S. ___, 132 S.Ct. 665, 669, 181 L.Ed.2d 586 (2012) (quoting Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983)); see also Concepcion, 131 S.Ct. at 1745; Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 25, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991).
Section 2 requires courts to enforce arbitration agreements according to their terms. Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 221, 105 S.Ct. 1238, 84 L.Ed.2d 158 (1985). As a result, there must be a "contrary congressional command" for another statute to override the FAA's mandate. CompuCredit, 132 S.Ct. at 669 (quoting Shearson/Am. Express, Inc. v. McMahon, 482 U.S. 220, 226, 107 S.Ct. 2332, 96 L.Ed.2d 185 (1987)). "If such an intention exists, it will be discoverable in the text of the [statute], its legislative history, or an `inherent conflict' between arbitration and the [statute's] underlying purposes." Gilmer, 500 U.S. at 26, 111 S.Ct. 1647; see also CompuCredit, 132 S.Ct. at 672 ("When [Congress] has restricted the use of arbitration ... it has done so with clarity."). The burden is on the party challenging the arbitration agreement to show that Congress intended to preclude a waiver of the judicial forum. Gilmer, 500 U.S. at 26, 111 S.Ct. 1647.
Here, Owen identifies nothing in either the text or legislative history of the FLSA that indicates a congressional intent to bar employees from agreeing to arbitrate FLSA claims individually, nor is there an "inherent conflict" between the FLSA and the FAA. In short, the FLSA contains no "contrary congressional command" as required to override the FAA.
Owen attempts to overcome this obstacle in several ways. First, Owen contends that § 216(b) of the FLSA creates a right to pursue a class action because it identifies "[t]he right ... to bring an action by or on behalf of any employee, and the right of any employee to become a party plaintiff to such any action." 29 U.S.C. § 216(b) (emphasis added). However, the FLSA also states that "[n]o employee shall be a party plaintiff to any such action unless he gives his consent in writing." Id. Even assuming Congress intended to
Second, Owen argues that the legislative history indicates a congressional command to override the FAA. In making this argument, Owen points to statements made during the passage of another labor relations statute — the National Labor Relations Act ("NLRA") in 1935 — as evidence that Congress intended to protect workers' rights to engage in concerted action. Owen contends that Congress passed the NLRA "to `secur[e] for employees the full right to act collectively' to ensure that `employers and employees should possess equality of bargaining power.'" She also argues that in passing the NLRA, Congress intended to build upon the Norris-LaGuardia Act, which was passed three years earlier to "prevent employers from imposing contracts on employees that would require employees to forgo engaging in collective actions." Owen contends that the passage of that Act amounted to a congressional declaration that it was the "`public policy of the United States' ... to protect workers' rights to engage in concerted activities" and that this declaration came "seven years after the passage of the FAA." See 29 U.S.C. § 102. She also points to language in the Norris-LaGuardia Act expressly repealing any acts or portions of acts that conflict with its protections. See 29 U.S.C. § 115. Missing from this analysis, however, is the fact that although the FAA originally was enacted in 1925, it was reenacted in 1947. See Gilmer, 500 U.S. at 24, 111 S.Ct. 1647. This reenactment came twelve years after the NLRA and fifteen years after the passage of the Norris-LaGuardia Act. Further, the FAA's reenactment also occurred nine years after the passage of the FLSA in 1938. The decision to reenact the FAA suggests that Congress intended its arbitration protections to remain intact even in light of the earlier passage of three major labor relations statutes. Thus, there is no inconsistency between either the FLSA text or its legislative history and the conclusion that arbitration agreements containing class waivers are enforceable in cases involving the FLSA.
Finally, in arguing that there is an inherent conflict between the FLSA and the FAA, Owen relies on the NLRB's recent decision in D.R. Horton,
Finally, our conclusion is consistent with all of the other courts of appeals that have considered this issue and concluded that arbitration agreements containing class waivers are enforceable in FLSA cases. See, e.g., Vilches v. Traveler's Cos., 413 Fed.Appx. 487, 494 n. 4 (3d Cir.2011); Horenstein v. Mortg. Mkt., Inc., 9 Fed. Appx. 618, 619 (9th Cir.2001); Caley v. Gulfstream Aerospace Corp., 428 F.3d 1359, 1378 (11th Cir.2005); Carter v. Countrywide Credit Indus. Inc., 362 F.3d 294, 298 (5th Cir.2004); Adkins v. Labor Ready, Inc., 303 F.3d 496, 503 (4th Cir. 2002); see also Delock, ___ F.Supp.2d at ___, 2012 WL 3150391, at *1 (explaining that it has generally "seemed settled law that an employee's statutory right to pursue a wage claim as part of a collective action ... could be waived in favor of individual arbitration"). These decisions also are consistent with more than two decades of pro-arbitration Supreme Court precedent. See, e.g., CompuCredit, 132 S.Ct. 665; Concepcion, 131 S.Ct. 1740; Gilmer, 500 U.S. 20, 111 S.Ct. 1647. Owen places considerable weight on the fact that Concepcion and CompuCredit involved contracts for consumer goods rather than for employment. Yet, the Court in Gilmer upheld a similar class waiver in an employment complaint brought under the Age Discrimination in Employment Act. See 500 U.S. at 32, 111 S.Ct. 1647. Thus, the Court's conclusion in Gilmer forecloses the argument that Supreme Court precedent
Therefore, given the absence of any "contrary congressional command" from the FLSA that a right to engage in class actions overrides the mandate of the FAA in favor of arbitration, we reject Owen's invitation to follow the NLRB's rationale in D.R. Horton and join our fellow circuits that have held that arbitration agreements containing class waivers are enforceable in claims brought under the FLSA.
Because we conclude that the class waiver in the MAA is enforceable, we reverse the district court's decision and direct the district court to enter an order granting Bristol Care's motion to stay proceedings and compel arbitration.