The U.S. Court of Appeals for the Eleventh Circuit held in Collado v. J.&G. Transport that an employer’s waiver of its right to arbitrate a claim under the Fair Labor Standards Act does not prevent it from asserting its right to arbitrate state law claims made by the plaintiff in an amended complaint. The decision should serve as a warning for both plaintiffs and defendants litigating in federal courts.
If a plaintiff is involved in litigation and the defendant has waived the right to arbitrate the claims in the complaint, then the plaintiff should not amend his complaint in a way that asserts any new claims. If he does, the plaintiff risks losing the strategic advantage gained by avoiding arbitration because he will likely have to arbitrate the new claims. Counsel would have to weigh the importance of amending the complaint to add a new claim, with the disadvantages that might accompany having to arbitrate the new claim.
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