Judge Kimba M. Wood
As a condition of employment, Sutherland consented to Ernst & Young’s “common ground dispute resolution program” (agreement) requiring binding arbitration and permitting arbitration on an individual basis only. Finding the agreement unenforceable as it prevented Sutherland from vindicating her rights, the court denied Ernst & Young dismissal of her class suit charging wrongful classification as exempt from the Fair Labor Standard Act’s and New York Labor Law’s overtime requirements, and nonpayment of overtime compensation. The court denied Ernst & Young reconsideration, rejecting its claims that the Second Circuit’s holding in Italian Colors Rest. v. Am. Express Travel Related Servs. Co. altered Sutherland’s burden of proof that arbitration was cost prohibitive, and that the Supreme Court’s holding in AT&T Mobility LLC v. Concepcion overruled the court’s prior analysis. The court noted that Congress has found the federal act’s protections of minimum wages and overtime pay crucial to the maintenance of the minimum standard of living necessary for health, efficiency and well being of society. Citing case law, the court noted that courts have found the act’s protections “particularly inappropriate” to be waived.
