Hunter v. Cash Saver Groceries

Filing 19

OPINION. Signed by Honorable Judge Myron H. Thompson on 3/9/2016. (kh, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION
JERRY "VIRGIL" HUNTER,

)
)
)
)
)
)
)
)
)

Plaintiff,
v.
BIG DADDY FOODS, INC.,
Defendant.

CIVIL ACTION NO.
2:15cv632-MHT
(WO)

OPINION
This
joint

case

motion

is
of

currently
plaintiff

defendant

Big

Daddy

settlement

of

Hunter’s

before
Jerry

the

court

“Virgil”

Foods,

Inc.,

to

claim

under

the

on

the

Hunter

and

approve
Fair

Standards Act (FLSA), 29 U.S.C. §§ 201-219.

a

Labor

For the

reasons that follow, the settlement will be approved,
albeit with two provisions struck.

I.

APPROVAL OF SETTLEMENT

“Because the FLSA was enacted to protect workers
from the poor wages and long hours that can result from
great

inequalities

in

bargaining

power

between

employers

and

employees,

the

FLSA’s

provisions

are

mandatory and, except in two narrow circumstances, are
generally

not

subject

to

bargaining,

waiver,

modification by contract or settlement.”

or

Stalnaker v.

Novar Corp., 293 F. Supp. 2d 1260, 1262 (M.D. Ala.
2003)

(Thompson,

J.)

(citing

Brooklyn

Sav.

Bank

v.

O’Neil, 324 U.S. 697, 706 (1945)).
The

first

exception

requires

supervision

by

the

Secretary of Labor under 29 U.S.C. § 216(c); the second
exception
wages

allows

under

“scrutiniz[es]

for

29
the

settlement

U.S.C.

of

claims

§ 216(b),

settlement

for

if

for
a

back
court

fairness,”

and

determines that it is a “fair and reasonable resolution
of a bonda fide dispute over FLSA provisions.”
Food

Stores,

Inc.

v.

United

States,

679

Lynn’s

F.2d

1350,

1353, 1355 (11th Cir. 1982).
In this case, there is a bona fide dispute over the
amount of back wages owed to Hunter.
a

fairness

settlement

hearing

and

agreement--by

reviewing
which

2

After conducting
the

terms

Hunter

will

of

the

receive

$ 4,500

(half

in

back

wages

and

half

in

liquidated

damages) and his attorney will receive the same amount
in fees--the court concludes that it is a fair and
reasonable resolution of this dispute, except to the
extent discussed below.1

II.

CONFIDENTIALITY AND NON-DISPARAGEMENT PROVISIONS

Sections

G

and

H

of

the

proposed

settlement

agreement (doc. no. 16, ex. A, at 4-5) prohibit Hunter
from disclosing its terms, and from making any public
statements regarding “any problems, issues, or concerns
he perceives he may have had, including but not limited
to

his

Lawsuit

claims
and

and

this

allegations

as

Agreement....”

set

forth

in

the

Specifically,

the

agreement says that the only statement that Hunter may
make concerning this case is: “The matter was settled
1. The court notes that the parties agreed, during
a conference call held on the record on March 8, 2016,
that there is a typographical error on the second page
of the settlement agreement (doc. no. 16, ex. A), and
that subsection A(a) should read as follows, with the
addition underlined: “pay in one check ... the sum of
two thousand two hundred fifty and 00/100 dollars
($ 2,250.00) less legally required withholdings....”
3

out

of

court

parties.”

to

the

mutual

satisfaction

of

the

During a conference call held on the record

on March 8, 2016, the court informed the parties that
it would not approve a settlement agreement containing
these

two

provisions,

and

defense

counsel

did

not

object to the approval of the proposed agreement with
them excised.
As this court has repeatedly held, confidentiality
provisions

in,

and

the

agreements

are

against

sealing
public

of,

FLSA

policy.

settlement

“Absent

some

compelling reason, the sealing from public scrutiny of
FLSA agreements between employees and employers would
thwart the public’s independent interest in assuring
that employees’ wages are fair and thus do not endanger
‘the national health and well-being.’”

Stalnaker, 293

F. Supp. 2d at 1264 (quoting Brooklyn Sav. Bank, 324
U.S. at 706); see also Dees v. Hydradry, Inc., 706 F.
Supp. 2d 1227, 1242 (M.D. Fla. 2010) (Merryday, J.) (“A
confidentiality

provision

in

an

FLSA

settlement

agreement ... contravenes the legislative purpose of

4

the

FLSA....”);

Elizabeth

Wilkins,

Silent

Workers,

Disappearing Rights: Confidential Settlements and the
Fair Labor Standards Act, 34 Berkeley J. Emp. & Lab. L.
109, 114 (2013) (“Individual plaintiffs in FLSA suits
... do not merely vindicate their own rights but also
act

as

norm.

private
...

attorneys

The

public

general
has

a

enforcing
right

to

a

public

understand

employer wrongdoing and to know that judges are acting
effectively to punish that wrongdoing.”); id. at 119
n.47 (collecting cases that have refused to seal FLSA
settlement agreements).2
The

non-disparagement

provision

in

the

parties’

proposed settlement agreement is unacceptable for much
the same reason: It forbids Hunter from discussing his

2. As a practical matter, “the confidentiality
provisions are likely unenforceable in light of the
public filing of the Settlement Agreement.” Poulin v.
Gen. Dynamics Shared Res., Inc., 3:09-CV-58, 2010 WL
1813497, at *2 (W.D. Va. May 5, 2010) (Moon, J.).
5

claims and their resolution.3

Although the defendant in

a FLSA case may “worry that settling with one employee
will encourage other employees to assert FLSA rights,”
providing notice to employees is a core purpose of the
FLSA,

which

a

confidentiality

or

non-disparagement

provision “thwarts ... by silencing the employee who
has vindicated a disputed FLSA right.”

Dees, 706 F.

Supp. 2d at 1242; see also Wilkins, Silent Workers,
Disappearing Rights, 34 Berkeley J. Emp. & Lab. L. at
134 & n.120 (“Confidentiality contravenes the notice
provision

of

FLSA,

illegally

undermining

...

other

employees[’] right to know what they ought to be paid.”
(citing 29 U.S.C. § 211)).
An appropriate judgment will be entered.
DONE, this the 9th day of March, 2016.
/s/ Myron H. Thompson____
UNITED STATES DISTRICT JUDGE

3. The court has no occasion here to address
whether
a
more
narrowly
drawn
non-disparagement
provision might be permissible.