In jurisdictions that require judicial oversight of Fair Labor
Standards Act settlement agreements, a question lingers: What
exactly should judges review? Some judges have begun
categorically striking confidentiality provisions from
settlement agreements by pointing to the purposes and goals of
the FLSA. The academic community lauds these courts’ efforts
to prevent employers from mandating employees’ silence about
the terms of their settlement agreements. This Note, however,
makes the counterargument: confidentiality provisions should
be permitted in FLSA settlements agreements as a bargaining
chip for employees who bring individual suits. If higher courts
in a given jurisdiction require judicial oversight of these
agreements, then the court reviewing the settlement should look
at the process that led to the settlement agreement, instead of
its substance, when assessing the agreement’s fairness.
Alongside Department of Labor enforcement actions, a process-
based review would address problems that confidentiality
provisions create for the national enforcement of labor rights
and would allow the suffering employee to maximize their
Conkel, Madison G.
"The Lost Approach to FLSA Settlement Agreements: A Freedom-of-Contract Approach,"
Georgia Law Review: Vol. 55:
2, Article 6.
Available at: https://digitalcommons.law.uga.edu/glr/vol55/iss2/6