In Hudson v. P.I.P., the Eleventh Circuit affirmed a lower court ruling denying an employer’s motion to compel arbitration of an FLSA collective action alleging failure to pay statutorily required overtime pay to plaintiffs. The fees and costs provision in the employer’s arbitration agreement provided that “each party to any arbitration will pay its own fees and expense, including attorneys’ fees and will share other fees of arbitration.” The district court held that this term is unenforceable under the FLSA’s provision authorizing prevailing plaintiffs to recover attorneys’ fees and costs, reasoning that the language did not leave the arbitrator with the discretion to award fees and costs to a prevailing FLSA plaintiff. The Eleventh Circuit agreed, finding that the clause prevented plaintiffs from vindicating their statutory rights under the FLSA in arbitration. The court remanded the case to the district court for a determination of whether the offending language could be severed under governing Florida law, rejecting the district court’s conclusion that the absence of a severability clause in the arbitration agreement meant that the language could not be severed. Hudson is a reminder to employers that, notwithstanding the trend favoring dispute resolution in arbitration, courts continue to scrutinize ambiguous arbitration agreements that effectively preclude plaintiffs from obtaining the full range of remedies available in court under the FLSA.