Susie Bigger v. Facebook, Inc., 947 F.3d 1043

Background

Plaintiff Susie Bigger, a level-4 Client Solutions Manager (CSM) at Facebook, sued under the FLSA alleging unpaid overtime on behalf of herself and all IC-3 and IC-4 CSMs nationwide for the prior three years.
Facebook moved for summary judgment asserting the FLSA administrative exemption and opposed conditional certification/notice on the ground that many proposed notice recipients had signed mutual arbitration agreements waiving collective- action participation.
At the district court, summary judgment was denied and the court authorized notice to the full proposed collective; Facebook obtained interlocutory appeal under 28 U.S.C. § 1292(b).
The Seventh Circuit addressed (1) whether courts may authorize notice to employees the defendant alleges entered mutual arbitration agreements, and (2) whether Facebook was entitled to summary judgment on the administrative-exemption defense.
The court held that a defendant seeking to exclude alleged “arbitration employees” must be given an opportunity to prove, by a preponderance of the evidence (after discovery if contested), the existence and validity of a valid arbitration agreement for each employee it seeks to exclude; if no plaintiff contests the agreements, the court may not authorize notice to those employees.
The court vacated the district court’s notice authorization and remanded for the prescribed steps, but affirmed denial of summary judgment because genuine factual disputes remain about Bigger’s duties (both the "directly related" and "discretion and independent judgment" prongs).

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether court may authorize notice to employees defendant says entered mutual arbitration agreements	Bigger: All proposed employees are "potential plaintiffs" exposed to a common unlawful policy; notice can be sent and eligibility can be determined later	Facebook: Many signatories executed mutual arbitration agreements barring collective- action participation; sending notice would mislead recipients and inflate settlement pressure	Court: May not authorize notice to employees shown to have valid arbitration agreements; defendant must be allowed to prove existence/validity by a preponderance after discovery; if plaintiff does not contest, court may not authorize notice to those employees
Whether Facebook is entitled to summary judgment based on the FLSA administrative exemption	Bigger: Factual disputes exist about whether her duties were administrative and whether she exercised discretion and independent judgment	Facebook: Bigger was highly compensated and routinely performed administrative duties and exercised discretion, so exemption applies	Court: Affirmed denial of summary judgment—material factual disputes remain as to whether Bigger’s duties were "directly related" to management/general business operations and whether she exercised discretion of significance

Key Cases Cited

Hoffmann–La Roche Inc. v. Sperling, 493 U.S. 165 (1989) (court must preserve neutrality and avoid appearance of endorsing merits when supervising collective-action notice)
In re JPMorgan Chase & Co., 916 F.3d 494 (5th Cir. 2019) (employer must prove existence and validity of arbitration agreements to exclude employees from notice)
Lamps Plus, Inc. v. Varela, 139 S. Ct. 1407 (2019) (judges generally decide gateway questions about the existence of arbitration agreements)
Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1 (1983) (federal policy favors arbitration)
First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938 (1995) (courts apply ordinary state-law contract principles to determine formation of arbitration agreements)
Encino Motorcars, LLC v. Navarro, 138 S. Ct. 1134 (2018) (FLSA exemptions are to be given a fair reading)
Schaefer–LaRose v. Eli Lilly & Co., 679 F.3d 560 (7th Cir. 2012) (administrative-exemption analysis is fact-intensive)
Blanchar v. Standard Ins. Co., 736 F.3d 753 (7th Cir. 2013) (distinguishing sales duties from administrative duties)
Verkuilen v. MediaBank, LLC, 646 F.3d 979 (7th Cir. 2011) (account manager duties can be administratively exempt where distinct from sales)
Reiseck v. Universal Communications of Miami, Inc., 591 F.3d 101 (2d Cir. 2010) (selling advertising space held non-exempt where sale was core revenue function)