United States District Court, N.D. Alabama, Southern Division
MEMORANDUM OPINION 
H. ENGLAND, III UNITED STATES MAGISTRATE JUDGE
Carlyda Kelly (“Kelly” or “Plaintiff) and
Defendant Aspire Physical Recovery Center at Hoover, LLC
(“Aspire” or “Defendant”) have
jointly requested approval of their settlement agreement,
which represents the resolution of a disputed matter under
the Fair Labor Standards Act, 29 U.S.C. § 201, et
seq. (“FLSA”). (Docs. 19 & 23). For the
reasons set forth below, the court approves the parties'
7, 2017, Kelly filed this action, asserting two FLSA counts.
(Doc. 1). In Count I, Kelly alleges Aspire wrongfully
classified her as an exempt managerial employee despite the
fact she was not subject to the exemption and improperly
denied her overtime compensation. (Id.). In Count
II, Kelly alleges Aspire terminated her on a pretextual basis
in retaliation for participating in a Department of Labor
investigation of Aspire's practices. (Id.). On
June 30, 2017, Aspire answered the complaint. (Doc. 7).
16, 2018, Aspire and Kelly jointly submitted a motion for
settlement approval and an attached settlement agreement.
(Docs. 19 & 19-1). After initial review of the agreement,
the undersigned held a telephone conference with the parties
to discuss a pervasive release and a confidentiality
provision contained in the agreement. Based on the discussion
at the telephone conference, the undersigned ordered the
parties to resubmit their agreement with specific
modifications. (Doc. 21). On June 27, 2018, the parties did
so, (doc. 23), and the undersigned has reviewed that
agreement. Aspire has agreed to pay a total of $32, 000.00 to
Kelly. (Id. at ¶ 1). Of that amount, $1, 562.00
is allocated to Kelly's Count I claim, (id. at
¶ 1.1.1); $1, 562.00 is allocated as liquidated damages
for Kelly's Count I claim, (id. at ¶
1.1.2); and $12, 626.00 is allocated to Kelly's Count II
claim for emotional distress damages, (id.). The
remaining $16, 250.00 is allocated to Kelly's counsel for
attorneys' fees and costs. (Id. at ¶
employee proves his employer violated the FLSA, the employer
must remit to the employee all unpaid wages or compensation,
liquidated damages in an amount equal to the unpaid wages, a
reasonable attorney's fee, and costs. 29 U.S.C. §
216(b). “FLSA provisions are mandatory; the
‘provisions are not subject to negotiation or
bargaining between employer and employee.'”
Silva v. Miller, 307 Fed.Appx. 349, 351 (11th Cir.
2009) (quoting Lynn's Food Stores, Inc. v. U.S.
Dep't of Labor, 679 F.2d 1350, 1352 (11th Cir.
1982)). “Any amount due that is not in dispute must be
paid unequivocally; employers may not extract valuable
concessions in return for payment that is indisputably owed
under the FLSA.” Hogan v. Allstate Beverage Co.,
Inc., 821 F.Supp.2d 1274, 1282 (M.D. Ala. 2011).
Consequently, parties may settle an FLSA claim for unpaid
wages only if there is a bona fide dispute relating to a
material issue concerning the claim.
Lynn's Food Stores, Inc. v. United States, 679
F.2d 1350, 1355 (11th Cir. 1982), the Eleventh Circuit stated
there is only one context in which compromises of FLSA back
wage claims may be allowed: a stipulated judgment entered by
a court which has determined that a settlement proposed by an
employer and employees, in a suit brought by the employees
under the FLSA, is a fair and reasonable resolution of a bona
fide dispute over FLSA provisions. The primary focus of a
court's inquiry in determining whether to approve an FLSA
settlement is to ensure that an employer does not take
advantage of its employees in settling their claim for wages
and other damages due under the statute. Collins v.
Sanderson Farms, Inc., 568 F.Supp. 714, 719 (E.D. La.
case presents the somewhat unusual scenario of an FLSA
settlement that includes both a wage claim and a retaliatory
termination claim. As stated above, there is no question that
a district court is required to scrutinize for fairness the
settlement of a claim for back wages brought pursuant to 29
U.S.C. § 216(b). Lynn's Food, 679 F.2d at
1353. However, Lynn's Food does not discuss
judicial oversight of retaliatory termination claims.
Accordingly, courts in this Circuit have generally concluded
that an FSLA retaliatory discharge claim is not subject to
the same review unless its terms contaminate any associated
wage claim. See, e.g., Hernandez v. Iron Container,
LLC, No. 13-22170-CIV, 2014 WL 633848, at *2 (S.D. Fla.
Feb. 18, 2014); Dunbar v. Wolf Bay Lodge, Inc., No.
CV 15-00265-CG-M, 2015 WL 6394515, at *1 n.1 (S.D. Ala. Oct.
22, 2015); Thompson v. Dealer Mgmt. Servs., Inc.,
No. 616CV1468ORL40KRS, 2016 WL 7644856, at *2 (M.D. Fla. Dec.
13, 2016), report and recommendation adopted, No.
616CV1468ORL40KRS, 2017 WL 37941 (M.D. Fla. Jan. 4, 2017).
undersigned is satisfied that the settlement of the
retaliatory discharge claim does not taint the settlement of
the wage claim. First, Kelly's counsel has represented
that resolution of the wage claim was negotiated separately
from the retaliation claim. Second, the far greater monetary
amount devoted to the retaliatory discharge claim reflects
that it is the dominant claim in this action, with the wage
claim representing a comparatively small portion of both the
factual allegations in the complaint and Kelly's
potential recovery. Finally, as discussed below, the
undersigned finds the parties' resolution of the wage
claim is fair on its face. Therefore, only the wage claim is
parties' dispute as to the merits of the case is
legitimate. Specifically, Kelly maintains she was
misclassified as an exempt employee, while Aspire maintains
that Kelly was not misclassified. (Doc. 19 at 1-2). The
settlement is appropriate for the disputed wages. Kelly
concedes she supervised other workers for part of the
three-year time period prior to filing suit. To the extent it
relates to wages, the settlement sum approximates the full
amount of unpaid overtime for the time period after
Kelly's supervisory duties were removed and an equal
amount in liquidated damages. (Id. at 4). Because
Kelly's supervisory authority potentially renders her an
exempt employee for the portion of the relevant time period
she held it, the undersigned finds this is an appropriate
basis for Kelly's compromise of her wage claim and a
reasonable resolution of the issue. Additionally, the parties
were represented by counsel throughout the litigation and the
negotiation of this settlement. Finally, Kelly's
attorneys' fees for the wage portion of her claim were
separately negotiated so as not to affect her
recovery.“Where the attorney's fee
was agreed upon separately, without regard to the amount paid
to the plaintiff, then ‘unless the settlement does not
appear reasonable on its face or there is reason to believe
that the plaintiff's recovery was adversely affected by
the amount of fees paid to his attorney, the Court will
approve the settlement without separately considering the
reasonableness of the fee to be paid to plaintiff's
counsel.'” Davis v. The Filta Group, Inc.,
2010 WL 3958701, *2 (M.D. Fla. Sept. 20, 2010) (quoting
Bonetti v. Embarq Mgmt. Co., 2009 WL 2371407, *5
(M.D. Fla. Aug. 4, 2009)). Therefore, the undersigned finds
the attorneys' fees are reasonable.
originally presented, the parties' settlement agreement
contained two provisions that concerned the undersigned.
First, pursuant to a general release contained in the
agreement, Kelly released Aspire from “any and all
claims whatsoever of any kind or nature arising out of or in
any way connected to (i) her employment with Aspire, (ii) the
termination of her employment, and (iii) any other claim she
may have arising from any event occurring prior to the date
of this Agreement.” (Doc. 19-1 at ¶ 2). The
provision contains a non-exclusive list of potential causes
of action Kelly released (e.g., claims under Title VII, the
Equal Pay Act, ERISA, and state law). This is problematic
because an employer may not “use an FLSA claim (a
matter arising from the employer's failing to comply with
the FLSA) to leverage a release from liability unconnected to
the FLSA.” Moreno v. Regions Bank, 729
F.Supp.2d 1346, 1351 (M.D. Fla. 2010).
the agreement contained a confidentiality provision
prohibiting Kelly from disclosing “the fact a
settlement agreement has been reached and the terms of this
Agreement . . . to anyone other than her attorneys, tax
advisors, or as otherwise required by law.” (Doc. 19-1
at ¶ 5). If asked, Kelly's only permitted response
is that the case has concluded; any violation of this
provision results in Kelly's obligation to pay $2, 500.00
in liquidated damages. (Id.). However,
“[a]bsent 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.'
” Hogan v. Allstate Beverage Co., 821
F.Supp.2d 1274, 1283 (M.D. Ala. 2011) (quoting Brooklyn
Savings Bank v. O'Neil, 324 U.S. 697, 708 (1945)).
While an FLSA confidentiality provision is not per se
unenforceable, a party seeking to include one must show
compelling reasons why it should be upheld. Briggins v.
Elwood TRI, Inc., 3 F.Supp.3d 1277, 1280 (N.D. Ala.
2014). Courts routinely strike these provisions. Id.
at 1289 (collecting cases).
13, 2018, the undersigned held a telephone conference to
discuss these issues. At the telephone conference, the
parties agreed to remove the confidentiality agreement and
make the release mutual. The parties resubmitted their
settlement agreement on June 27, 2018, with those
modifications. (Doc. 23 at 4-9). The undersigned is satisfied
that the agreed-upon changes resolve the potential fairness
issues identified above. Specifically, the confidentiality
provision has been removed entirely, and the mutual general
release, (id. at ¶ 2), is no longer “a
gratuitous . . . release of all claims in exchange for money