Cheeks Fairness Hearings (2026): How FLSA Settlements Get Approved (or Rejected) in the Second Circuit

Bottom line: In the Second Circuit, you cannot quietly settle a Fair Labor Standards Act (FLSA) wage claim filed in federal court and walk away. Under Cheeks v. Freeport Pancake House, Inc., 796 F.3d 199 (2d Cir. 2015), a federal judge in New York, Connecticut, or Vermont must review and approve the deal — and routinely strikes confidentiality clauses, blanket general releases, and non-disparagement provisions. Either you build a settlement the court will sign off on, or you use one of three legitimate procedural routes to take the case out of Cheeks’s reach. The wrong move costs everyone time and money; the right one ends a wage case cleanly.

The compliance posture every New York employer and wage-and-hour plaintiff’s lawyer needs to understand in 2026 is shaped by a single Second Circuit decision now eleven years old and still doing the heavy lifting it did the day it was decided: Cheeks. If you have ever filed or defended a wage-and-hour case in the Eastern District of New York (Brooklyn / Central Islip) or the Southern District (Manhattan / White Plains), you have already met Cheeks — or you are about to.

This is the practitioner explainer I wish existed when I started defending FLSA cases. It walks through the doctrine, the controlling Second Circuit and district court framework, the term-by-term landmines that turn an executed settlement into another six weeks of motion practice, the three legitimate bypass routes, and the strategy implications for both sides — with the New York Labor Law overlay you will not find on a generic national legal blog.

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What a Cheeks Fairness Hearing Actually Is

A Cheeks fairness hearing is the judicial-approval proceeding that the Second Circuit requires before a private FLSA wage-and-hour case filed in a federal district court within the circuit (New York, Connecticut, Vermont) can be dismissed by a stipulated settlement under Federal Rule of Civil Procedure 41(a)(1)(A). The court reads the settlement agreement, the parties brief why it is fair and reasonable, the judge asks questions — sometimes in writing, sometimes in chambers, occasionally on the record — and then either approves the agreement and signs the dismissal order or refuses to approve it and sends the parties back to the table.

It is a creature of federal common law engrafted onto the FLSA’s anti-waiver doctrine. There is no statute that says “you must have a fairness hearing” the way the Class Action Fairness Act imposes notice-and-hearing obligations on Rule 23 settlements. Cheeks itself is the statute, the rule, and the practice manual.

The case itself: Cheeks v. Freeport Pancake House

Cheeks v. Freeport Pancake House, Inc., 796 F.3d 199 (2d Cir. 2015), arose from a Long Island diner. Dorian Cheeks, a former pancake-house employee, sued his employer in the Eastern District of New York alleging unpaid overtime under the FLSA, plus parallel state-law claims under the New York Labor Law (NYLL). The parties reached a private settlement and filed a stipulation of dismissal with prejudice under Rule 41(a)(1)(A)(ii) — the rule that ordinarily lets parties end a federal case unilaterally, without judicial approval, by filing a piece of paper signed by both sides.

The district court refused to “so order” it. On appeal, the Second Circuit affirmed and adopted a categorical rule: stipulated dismissals of FLSA actions with prejudice require either Department of Labor supervision or judicial approval to be effective, full stop. The court grounded its holding in the long-standing FLSA anti-waiver doctrine articulated by the Supreme Court in Brooklyn Savings Bank v. O’Neil, 324 U.S. 697 (1945), and D.A. Schulte, Inc. v. Gangi, 328 U.S. 108 (1946). Employees, the Cheeks panel reasoned, cannot “waive or release [their FLSA] rights as part of a private settlement” because doing so undermines the statute’s remedial purpose. The full text of Cheeks is available on Google Scholar and through the Second Circuit’s Court of Appeals website.

That ruling moved the Second Circuit from the looser camp (where Rule 41(a) dismissals were generally honored without scrutiny) into the same posture as the Eleventh Circuit, whose 1982 decision in Lynn’s Food Stores, Inc. v. United States, 679 F.2d 1350 (11th Cir. 1982), is the foundational FLSA fairness-review case in the country. Cheeks is the Second Circuit’s Lynn’s Food, and federal judges in EDNY and SDNY apply it the way the Eleventh Circuit applies Lynn’s Food — which is to say, vigorously. The full text of Cheeks is available through the Second Circuit’s published-opinions database and on Google Scholar.

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Why FLSA Settlements Need Judicial Approval

The FLSA is not an ordinary employment statute. Enacted in 1938 as a New Deal floor under American wages and hours, it embeds an explicit congressional finding that “the unfair method of competition” of substandard wages is a national-economy problem, not just a private contract problem. That premise drives the anti-waiver doctrine: employees cannot, by private agreement, release their right to the FLSA’s statutory minimum wage, overtime, and liquidated-damages remedies. The reasoning, in the Supreme Court’s own words from Brooklyn Savings Bank, is that workers’ bargaining power is structurally unequal to their employer’s; absent a check, employers could “obtain undue advantage” by pressuring employees into discounted settlements.

There are exactly two pathways to a valid FLSA release on private (non-collective) claims:

1. A DOL-supervised settlement under FLSA §216(c) (29 U.S.C. §216(c)), where the Wage and Hour Division calculates back-wages owed and the employee accepts the agency-computed amount. These are common in agency audits; they are nearly nonexistent in private litigation.
2. Judicial approval of a private settlement filed in a federal court action — the Cheeks / Lynn’s Food pathway.

If you do not go through one of those two doors, the release is “unenforceable” — meaning the employee can take the settlement money and still file a new FLSA suit for the same underpayments. That is not theoretical. In Manning v. Boston Med. Ctr. Corp., 725 F.3d 34 (1st Cir. 2013), an employee did exactly that, and the First Circuit refused to enforce the prior unsupervised release. The Second Circuit’s Cheeks opinion expressly invoked this risk as a reason for the categorical rule.

The fairness hearing is the procedural mechanism the Cheeks court chose to make sure judicial approval is meaningful rather than rubber-stamped.

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The Four-Factor Wolinsky Framework

Cheeks itself laid out the rule but said little about how a judge should apply it. The operating framework comes from an earlier Southern District decision the Cheeks panel cited approvingly: Wolinsky v. Scholastic Inc., 900 F. Supp. 2d 332 (S.D.N.Y. 2012) (Furman, J.). District judges across the Second Circuit now apply the Wolinsky four factors, often expanding them into a checklist of six or seven sub-factors.

Factor 1 — Bona fide dispute over coverage or hours

The court asks whether the case presents a real, contested factual or legal question about whether overtime or minimum-wage violations occurred — not just a “nuisance” payment to make a complaint go away. The parties’ joint motion for approval should briefly describe the disputed facts (e.g., whether the employee was misclassified as exempt, whether off-the-clock hours occurred, whether the tip credit was properly applied), the strengths and weaknesses of each side’s position, and the risk of an adverse verdict.

A bare statement that “the parties have agreed to resolve this matter” is the most common reason for an initial rejection without prejudice. Judges want the math.

Factor 2 — The settlement is fair and reasonable in amount

Most fairness orders require the parties to disclose:

• The plaintiff’s maximum potential recovery if every disputed hour and every disputed overtime premium were proven (often called the “best-case” or “outside” recovery).
• The settlement amount the employee will receive net of attorney fees and costs.
• The percentage of the maximum that the net settlement represents.

A settlement at 25–35% of maximum potential recovery — common in cases with disputed misclassification or off-the-clock theories — is routinely approved. A settlement at 5–10% of maximum recovery, with no explanation of why the plaintiff faces an unusually high risk of losing, will draw scrutiny and frequently a request for supplemental briefing.

Factor 3 — Attorney fees are reasonable

This is the factor that catches more practitioners than any other. Federal judges in EDNY and SDNY do not accept the “one-third contingency” allocation that is routine in state-court NYLL cases. The court will perform a lodestar cross-check — multiplying counsel’s reasonable hourly rate by the reasonably-expended hours — and compare it to the proposed fee. If the proposed contingency fee balloons the recovery to 3× or 4× the lodestar, courts will reduce it.

The Second Circuit underscored this in Fisher v. SD Protection Inc., 948 F.3d 593 (2d Cir. 2020), holding that the district court must independently scrutinize attorney fees in any FLSA settlement and that a court may reduce fees even where the parties have agreed to them. The opinion is available on the Second Circuit’s database.

Factor 4 — No “highly restrictive” terms that frustrate FLSA’s remedial purpose

This is where most settlements actually break. Courts apply a presumption against:

• Overly broad general releases that sweep in non-wage claims (e.g., discrimination, retaliation, defamation).
• Confidentiality clauses that prevent the employee from publicly discussing the case or the underpayment.
• Non-disparagement provisions that operate as gag orders by another name.
• No-rehire clauses unrelated to a bona fide individualized concern.
• Prevailing-party attorney-fee provisions that flip statutory fee-shifting on its head.
• Indemnification clauses requiring the employee to indemnify the employer against future claims.

Each of these is unpacked in the section below.

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The Settlement Clauses Federal Courts in New York Routinely Reject

The Second Circuit’s wage-settlement bar has produced an enormous body of district-court opinion law cataloguing the precise clauses that get a fairness motion bounced back. Below is the operational list — these are the provisions you should expect to be struck (or to require revision) before approval in EDNY, SDNY, NDNY, WDNY, or the District of Connecticut.

Clause	Why courts reject it	What works instead
Overly broad general release (“any and all claims known or unknown”)	Forces the employee to waive non-wage claims (discrimination, retaliation, defamation) in exchange for back wages they were owed regardless. Cheeks itself flagged this as the problem with the Freeport Pancake House agreement.	A narrow release tied to wage-and-hour claims only — FLSA, NYLL, and any state equivalents. The “in exchange for” consideration is wage-loss compensation; the release must match.
Confidentiality clause (“the parties agree not to disclose the terms of this agreement”)	Federal courts repeatedly hold that confidentiality “thwarts the FLSA’s primary remedial purpose: ensuring public awareness of FLSA violations.” See, e.g., Lopez v. Nights of Cabiria, LLC, 96 F. Supp. 3d 170, 178 (S.D.N.Y. 2015) (Furman, J.).	Either omit confidentiality entirely or limit it to the actual settlement amount (not the existence of the case or the conduct alleged). Courts split on even that — many strike any confidentiality term.
Non-disparagement (“plaintiff shall not make any negative statements about defendant”)	Reads as a confidentiality clause in disguise. Courts in SDNY are nearly uniform in rejecting these as a “highly restrictive provision in strong tension with the remedial purposes” of the FLSA — Lopez again.	A mutual carve-out allowing truthful statements about underlying conduct and a narrow restriction on knowingly false statements (i.e., defamation, which is already actionable).
No-rehire / no-reapply provisions	Courts treat these as retaliation by contract — the employee gives up future employment rights in exchange for being paid what they were owed. Disfavored absent a specific, individualized employer concern (e.g., documented misconduct independent of the wage dispute).	Omit unless there is a real, articulated business reason.
Indemnification by employee	Shifts the employer’s compliance risk onto the employee — the opposite of FLSA’s risk allocation. Routinely struck.	Omit.
Prevailing-party fee provisions	Reverses the FLSA’s one-way fee shift (the statute awards fees to a prevailing employee, not to a prevailing employer). Treated as in terrorem clauses.	Use the statutory rule. If the employer wants a fee provision, limit it to a fees-and-costs entitlement only on proof of fraud or bad faith.
Choice-of-law / forum clauses for future disputes	Some courts strike provisions that would funnel any future wage claim into arbitration or a non-NY forum.	Omit, or limit to disputes about the agreement itself, not future wage claims.
Acknowledgment that employer “did not violate” FLSA	Disfavored as inconsistent with the bona fide dispute the parties just told the court about.	A “no-admission-of-liability” clause is fine; a “no-violation-occurred” clause is not.

A motion for approval that anticipates and addresses each of these — either by omitting the offending clause or by explaining why this case warrants an exception — sails through. A motion that does not invites a written order requiring a revised agreement, which typically adds 30–60 days to the resolution.

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The Three Legitimate Ways to Bypass Cheeks Review

Because the fairness-hearing process can be lengthy, intrusive, and incompatible with standard employer-favored settlement language (confidentiality especially), practitioners on both sides routinely use three procedural pathways that take the case out of Cheeks’s reach entirely. These are not loopholes — they are the recognized procedural alternatives the Second Circuit itself has either approved or distinguished.

1. Rule 68 Offer of Judgment

Federal Rule of Civil Procedure 68 lets a defendant make a formal offer of judgment that, if accepted within 14 days, results in the clerk of court automatically entering judgment for the offered amount. No motion. No hearing. No briefing. In 2019, the Second Circuit held in Mei Xing Yu v. Hasaki Restaurant, Inc., 944 F.3d 395 (2d Cir. 2019), that an accepted Rule 68(a) offer of judgment in an FLSA case does not require Cheeks approval because Rule 68 judgments are entered by the clerk, not by a stipulated dismissal that requires court action.

The reasoning is jurisdictional and textual: Cheeks is grounded in Rule 41(a)(1)(A)(ii), which addresses stipulated dismissals; Rule 68 is a separate procedural mechanism that produces a judgment, not a dismissal. The opinion is one of the more carefully reasoned procedural-rules decisions to come out of the Second Circuit in the last decade. It is also the most consequential FLSA practice ruling since Cheeks itself.

Practical implications for employers:

• Rule 68 offers can include confidentiality, non-disparagement, and broad release provisions that a Cheeks-approved settlement could not.
• Once accepted, the judgment is final; there is no judicial review of the terms.
• An offer of judgment also triggers Rule 68’s cost-shifting consequence: if the plaintiff later obtains a less-favorable judgment, post-offer costs (and, under FLSA, potentially attorney fees) shift to the plaintiff.

Practical implications for plaintiffs:

• A Rule 68 offer must be evaluated within 14 days — there is no extension.
• The offer is a take-it-or-leave-it; counter-offers are negotiations, not Rule 68 mechanics.
• The cost-shifting consequence puts real pressure on a plaintiff to accept a reasonable offer.

The Yu v. Hasaki opinion is available on CourtListener and on Google Scholar.

2. File the wage claim in state court under NYLL only

The simplest and most common bypass for plaintiffs’ counsel in New York is to never file in federal court at all. Cheeks applies to FLSA actions in federal district courts within the Second Circuit. If the only claims pled are state-law wage-and-hour claims under New York Labor Law Article 6 (unpaid wages), Article 19 (minimum wage and overtime under the New York State Minimum Wage Act), and the Wage Theft Prevention Act, there is no FLSA cause of action in the case and no Cheeks requirement.

NYLL is in many respects more protective than the FLSA — longer statute of limitations (6 years vs. 2 or 3), automatic liquidated damages of 100% of unpaid wages, mandatory wage-notice and wage-statement penalties (up to $5,000 per claim under the Wage Theft Prevention Act), and an attorney-fee provision that mirrors the FLSA’s. For a New York-resident employee working at a New York-located employer, suing under NYLL alone is often better than adding an FLSA claim — both because the recovery is larger and because the settlement can be confidential, with broad releases, and without judicial scrutiny under state-court practice.

This is the single biggest reason that NYLL-only wage cases dominate filings in Nassau County Supreme Court and Suffolk County Supreme Court while FLSA cases concentrate in EDNY and SDNY.

Caveat: if the employer removes the case to federal court on diversity grounds, Cheeks still does not apply (no FLSA claim is in the case). But if the employer is large, multistate, or engaged in interstate commerce, plaintiffs sometimes plead an FLSA claim deliberately to anchor the case in federal court — accepting Cheeks review as the price of admission. The strategic decision is case-specific.

3. Rule 41(a)(1)(A)(i) voluntary dismissal without prejudice + private side agreement

Cheeks addresses dismissals with prejudice. Some practitioners have explored whether a dismissal without prejudice under Rule 41(a)(1)(A)(i), accompanied by a separate side agreement outside the four corners of the court filing, avoids judicial review.

The honest answer in 2026 is: maybe, but treat this as risky. Some district judges have approved this structure where the side agreement does not purport to release FLSA claims and the case is dismissed without prejudice. Others have treated the structure as a transparent attempt to evade Cheeks and have either required disclosure of the side agreement or imposed Cheeks review on it. Compare Picerni v. Bilingual Seit & Preschool Inc., 925 F. Supp. 2d 368 (E.D.N.Y. 2013), with Samake v. Thunder Lube, Inc., 24 F.4th 804 (2d Cir. 2022).

The Second Circuit’s Samake decision is particularly important here — it held that even a Rule 41(a)(1)(A)(i) dismissal without prejudice can require Cheeks scrutiny when it is part of a settlement that effectively releases the FLSA claims. The court framed the inquiry as a substance-over-form analysis: if the dismissal operates as a settlement of FLSA claims, Cheeks applies.

For most practitioners, Rule 68 (path 1) and NYLL-only state filing (path 2) are cleaner. Rule 41(a)(1)(A)(i) dismissals work best in narrow situations — for example, a defendant’s strategic dismissal early in litigation where no settlement consideration has changed hands.

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Strategy for New York Workers (Plaintiffs)

If you are the worker, the Cheeks requirement is your friend in federal court and irrelevant in state court. The strategic question is which venue to choose, and whether to plead the FLSA claim at all.

File in federal court (FLSA + NYLL) when:

• The employer is multistate or has out-of-state assets that make federal court collection easier.
• Your case is large enough that you want a federal judge to scrutinize the settlement, including attorney-fee allocation.
• You expect to need extensive discovery on payroll and HR records — federal magistrate judges actively manage discovery in EDNY/SDNY wage cases.
• You want the protection of Cheeks on the back end: an employer cannot force a confidential settlement on you because the court will not approve one.

File in state court (NYLL only) when:

• All the parties and operative events are in New York.
• You want a confidential settlement, perhaps because of the size or because of related allegations that you do not want public.
• You want the longer 6-year SOL (NYLL) instead of the 2-year (or 3-year for willful violations) FLSA limitations period.
• You want broader liquidated damages (100% under NYLL, mandatory; FLSA also has 100% but it is subject to a good-faith defense).
• You want to add a Wage Theft Prevention Act claim (notice and wage-statement penalties up to $5,000 each).

A serious wage-and-hour case usually involves both statutes. Where to plant the flag is a tactical call that depends on the facts. If you are evaluating a potential wage-and-hour case, the firm’s wage-and-hour practice page lays out the substantive law, and the employment-discrimination hub covers how wage claims interact with retaliation, hostile-work-environment, and wrongful-termination claims that often run alongside them.

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Strategy for Long Island Employers (Defendants)

If you are the employer, the Cheeks regime cuts both ways. The good news: the requirement of judicial approval applies symmetrically — a plaintiff cannot extract an unreasonable settlement and then file a separate state-court action on the same wages. The bad news: most of the settlement language employers prefer is exactly what the Second Circuit’s district courts strike.

Practical playbook for employers and their counsel:

1. Audit before you litigate. Most FLSA cases that produce Cheeks-level settlements are the result of misclassification or overtime exposures the employer could have caught in a DOL-self-audit before the first complaint hit the docket. Audit your overtime-exempt classifications annually. Audit your tip-credit and spread-of-hours practices if you have hourly or tipped workers. Audit your timekeeping system.
2. Use Rule 68 strategically. A Rule 68 offer of judgment is the cleanest path to closure of a federal FLSA case with confidentiality and broad-release terms intact. The cost: the offered amount is irrevocable for 14 days and is admissible against you only on the cost-shifting question.
3. Resist the urge to over-paper the agreement. A clean settlement (narrow release, no confidentiality, market attorney fees) gets approved at the first fairness motion. An over-papered settlement (boilerplate general release, confidentiality, non-disparagement, no-rehire, indemnification) gets sent back for revisions, sometimes more than once.
4. Disclose attorney fees with the math. A short lodestar memorandum from plaintiff’s counsel attached to the joint motion is the single best predictor of fast approval.
5. If the case is purely a state-law wage claim that an aggressive plaintiff’s lawyer has dressed up with an FLSA count, consider a strategic offer that conditions a confidentiality clause on dismissal without prejudice and a Rule 68 acceptance. Counsel on both sides should be candid about whether the FLSA claim is real or pleadings garnish.

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Recent Second Circuit Developments (What Has Changed Since 2015)

Year	Decision	Holding	Practical effect
2015	Cheeks v. Freeport Pancake House, 796 F.3d 199	Stipulated FLSA dismissals require DOL or judicial approval	The baseline rule
2019	Mei Xing Yu v. Hasaki Restaurant, 944 F.3d 395	Rule 68 accepted offers of judgment do not require Cheeks approval	The most-used bypass; reshaped settlement strategy across the circuit
2020	Fisher v. SD Protection Inc., 948 F.3d 593	District courts must independently scrutinize attorney fees in Cheeks approval	Killed the “agreed contingency” shortcut; lodestar cross-check now standard
2022	Samake v. Thunder Lube, Inc., 24 F.4th 804	Rule 41(a)(1)(A)(i) dismissals without prejudice can require Cheeks scrutiny when they operate as settlements of FLSA claims	Closed the “side agreement” loophole
2024–2025	Multiple district court decisions in SDNY and EDNY	Continued narrowing of acceptable confidentiality, non-disparagement, and release language	The trend is more scrutiny, not less

For the most current case law on Second Circuit FLSA settlement practice, the National Law Review and the Wage and Hour Defense Blog publish helpful (if defense-leaning) summaries. The U.S. Department of Labor’s FLSA homepage is the comprehensive federal guideline reference for the underlying substantive law.

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Frequently Asked Questions

Q: Does Cheeks apply to a Title VII or NYSHRL discrimination settlement? A: No. Cheeks is FLSA-specific. Title VII, ADEA, ADA, NYSHRL, and NYCHRL claims do not require judicial approval to settle and are routinely resolved with confidentiality and broad-release provisions. The intersection becomes complicated when a case includes both FLSA wage claims and discrimination claims — the wage portion is subject to Cheeks, the discrimination portion is not. Most counsel sever the releases by claim type to address this.

Q: How long does a Cheeks fairness hearing actually take? A: Most are decided on the papers without an in-person hearing. The joint motion for approval is filed; the court issues an order either approving (often within 7–30 days) or requesting supplemental briefing or a revised agreement. A small minority of cases involve an actual hearing on the record, usually because the court has a specific concern (e.g., about the attorney-fee allocation or a non-disparagement clause). End-to-end, a clean Cheeks approval adds 30–60 days to a settled case; a contested one can add 90–180 days.

Q: Can a Cheeks-rejected settlement be revised and resubmitted? A: Yes, and this is the normal procedural posture. The court issues a written order identifying the offending provisions; the parties revise; the joint motion is resubmitted. The court approves the revised agreement. There is no penalty for a first-pass rejection, but it adds time.

Q: What if the employee doesn’t have a lawyer? Does pro se status change anything? A: It heightens Cheeks scrutiny. Federal courts apply Cheeks with particular care when a pro se plaintiff is on the other side of a represented employer. Some judges will appoint pro bono counsel before approving a settlement; others will require an in-person hearing to confirm the plaintiff understands the terms. A pro se FLSA settlement that comes in with a broad confidentiality clause and a 50% lodestar premium will be rejected nearly every time.

Q: Does Cheeks apply to FLSA collective actions under Section 216(b)? A: Yes, with additional layers. Collective-action settlements require both Cheeks approval of the substantive terms and a Rule 23-style fairness analysis on the collective component (notice, opt-in mechanics, allocation among opt-in plaintiffs). This is where most of the heaviest fairness-hearing litigation happens.

Q: Is the agreement filed publicly on the court’s docket? A: Typically yes, with limited exceptions. Some courts permit redacted filings or sealed exhibits where particular contractual terms involve trade secrets, but the settlement agreement itself and the parties’ joint motion are public filings in nearly every case. This is part of why confidentiality clauses are inconsistent with Cheeks — the document the parties want to keep confidential is, in the act of submitting it for approval, becoming public.

Q: What does the judge actually look at first? A: Most experienced practitioners’ read of EDNY/SDNY judges in 2026: (1) the attorney-fee paragraph and the lodestar cross-check, (2) the release paragraph (looking for “any and all claims” language), (3) any confidentiality, non-disparagement, or no-rehire provisions. The order of review tracks the order of common rejection grounds.

Q: Does Cheeks apply in the Eastern District of New York and the Southern District equally? A: Yes — both are within the Second Circuit. EDNY (Brooklyn, Central Islip, Hauppauge) and SDNY (Foley Square, White Plains) judges apply the same controlling framework. There are minor stylistic differences between individual judges (some appoint pro bono counsel more readily, some require oral arguments more often), but the legal standard is uniform.

Q: What about the District of Connecticut and the District of Vermont? A: Same — both are in the Second Circuit, both apply Cheeks. The volume of FLSA cases in those districts is lower, so the local case law is thinner, but the doctrine is identical.

Q: Can the parties agree to keep the settlement amount confidential while still meeting Cheeks? A: Limited yes. Some district judges will approve a settlement where the amount (and only the amount) is redacted from the public filing, while the substantive terms and the lodestar disclosure remain public. Other judges will strike even amount-confidentiality. The market practice in SDNY in 2026 is to file the full agreement publicly and accept that confidentiality is functionally unavailable in FLSA federal-court settlements.

Q: How does Cheeks interact with arbitration agreements? A: This is a developing area. If the FLSA claim is compelled to arbitration before any settlement, the arbitrator’s award is not subject to Cheeks (it is governed by the FAA confirmation process under 9 U.S.C. §9). A growing line of decisions has used this to functionally avoid Cheeks in cases with valid pre-dispute arbitration agreements. Whether the Second Circuit will continue to permit this carve-out is genuinely open.

Q: What is the single biggest mistake practitioners make at the Cheeks stage? A: Submitting a settlement that simply imports the parties’ standard employment-release template without scrubbing it for Cheeks incompatibility. The standard severance-release language used in non-FLSA cases — confidentiality, broad general release, non-disparagement, no-rehire — is precisely the language Cheeks exists to reject. A 20-minute pre-submission revision pass solves 90% of the rejections.

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Bottom Line

Cheeks is the procedural spine of FLSA settlement practice in New York. It is annoying for employers, protective for workers, and produces a steady stream of district-court opinion law on what specific contractual terms a federal judge will and will not approve. Eleven years in, the practitioner playbook is well-developed:

• If you want judicial approval, draft the agreement to the four-factor Wolinsky framework — bona fide dispute, fair amount, reasonable fees, no highly restrictive terms.
• If you want confidentiality and broad releases, use Rule 68 (one of the most consequential post-Cheeks developments in the circuit, courtesy of Yu v. Hasaki) or file the wage claim in state court under NYLL (the practical bypass for the great majority of New York-only cases).
• If you are evaluating a potential wage case from either side, the worst outcome is an unenforceable release that gets the deal undone six months later — exactly the outcome the Second Circuit designed Cheeks to prevent.

For the most up-to-date analysis on Second Circuit FLSA developments, the National Law Review and the official U.S. Department of Labor FLSA homepage are the canonical reference sources. For practitioner discussion of how individual EDNY and SDNY judges apply Cheeks, the federal court’s PACER docket is the only authoritative source.

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Get help with a Long Island or NYC wage-and-hour matter

The Law Office of Jason Tenenbaum, P.C. handles FLSA and New York Labor Law claims on both sides — representing workers who have been underpaid and employers responding to a wage-and-hour complaint. We litigate in EDNY, SDNY, Nassau County Supreme Court, and Suffolk County Supreme Court. If you are facing a wage claim — as plaintiff or defendant — and want a candid assessment of whether Cheeks applies, whether Rule 68 is a viable path, and what the math actually looks like in your case, call (516) 750-0595 or use the contact form to set up a free consultation.

Related practice areas:

• Long Island Wage and Hour Attorney — FLSA, NYLL Articles 6 and 19, Wage Theft Prevention Act, overtime, misclassification, tip-credit disputes
• Employment Discrimination Hub — Title VII, NYSHRL, NYCHRL, ADA, ADEA, FMLA
• Long Island Employer Retaliation Attorney — when a wage complaint triggers retaliation
• Long Island Wrongful Termination Attorney — wage-driven terminations and constructive discharge
• FAQ — 37 frequently asked questions across seven practice areas
• Legal Encyclopedia — NY wage, no-fault, and personal injury terms reference

External authority resources:

• U.S. Department of Labor — Fair Labor Standards Act — comprehensive federal FLSA guidance
• DOL Wage and Hour Division — State Minimum Wage Laws — including New York’s $16.50 (2026) Long Island/NYC/Westchester rate
• New York DOL — Wage and Hour Laws and Wage Theft Prevention Act — notice and wage-statement penalty framework
• Second Circuit Court of Appeals and Google Scholar case law search — Cheeks, Yu v. Hasaki, Fisher, Samake full opinions
• National Law Review — Wage and Hour archive — practitioner-oriented case-law updates

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This article was last reviewed on May 20, 2026. New York wage-and-hour law, Second Circuit precedent, and Department of Labor regulations change frequently — verify current rules before relying on them. Nothing in this article constitutes legal advice. The Law Office of Jason Tenenbaum, P.C. is licensed in New York State only.