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Report Link U.S. Supreme Court Set To Begin New Term Justices To Review Arbitration And Disparate Impact Bias Cases.Ogletree Deakins - November 03, 2009 In early October, the U.S. Supreme Court began hearing oral arguments in the 2009-2010 term. There are currently seven cases on the docket that involve employment and labor related issues or are likely to impact these areas. One of the most notable of these will decide how much time plaintiffs have to file a lawsuit when they believe they have been unfairly penalized by hiring tests. Other cases will resolve issues involv-ing an alleged whistleblower, pension benefits, race discrimination, and labor arbitration. Report Link Can You Enforce Your Employment Arbitration Agreement?Baker, Donelson, Bearman, Caldwell & Berkowitz, PC - October 23, 2009 Many employers prefer the speed, reduced cost and procedural simplicity promised by arbitrations when resolving disputes with current or former employees. After briefly encouraging this form of alternative dispute resolution as an alternative to litigation, courts have increasingly stepped up their oversight of arbitration agreements and have begun striking agreements deemed too one-sided for employers. Accordingly, employers who attempt to mandate arbitration of employment claims should review their agreements in light of some recent judicial guidance. Report Link Courts, Not Arbitrators, to Decide Issue of Unconscionability in First Instance, Ninth Circuit Rules.Jackson Lewis LLP - September 21, 2009 Reversing an order compelling arbitration, the U.S. Court of Appeals for the Ninth Circuit held that, where a party specifically challenges an arbitration agreement as unconscionable, the court, not the arbitrator, must decide the issue of unconscionability in the first instance, even if the arbitration agreement provides otherwise. Jackson v. Rent-A-Center West, Inc., No. 07-16164 (9th Cir. Sept. 9, 2009). The Court also found that the agreement’s fee-sharing provision was not unconscionable. However, because the district court failed to address whether other provisions in the agreement also were unconscionable, the Court remanded the matter for further proceedings. The Ninth Circuit, which has jurisdiction over Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington. Report Link Up Next: The Arbitration Fairness Act of 2009.Baker, Donelson, Bearman, Caldwell & Berkowitz, PC - May 28, 2009 Legislation has been introduced in both houses of Congress that would all but eliminate an employer's right to enter into pre-dispute arbitration agreements with its employees. Under the Arbitration Fairness Act of 2009, pre-dispute agreements requiring the arbitration of an employment dispute or any dispute arising under any statute intended to protect civil rights would be invalid and unenforceable. The Act would also prohibit pre-dispute arbitration agreements addressing consumer or franchise disputes. The legislation would not affect arbitration agreements entered prior to the statute's enactment. Report Link WHEN ARE ARBITRATION AGREEMENTS ENFORCEABLE?: WHEN IN “ROMAN”.Shaw Valenza LLP - May 11, 2009 Federal and state legislation establish a public policy encouraging the use of arbitration agreements to resolve disputes. However, many employers have seen their agreements invalidated since the California Supreme Court‘s 2000 decision in Armendariz v. Foundation Health Psychcare, Inc. In that case, the Court imposed several procedural requirements for employment arbitration agreements. Recent appellate decisions have relied on those requirements to refuse to enforce employer’s existing arbitration agreements. Report Link Arbitration Decision Is Either No Big Deal, or a Great Employer Victory.Constangy, Brooks & Smith, LLP - April 22, 2009 The Supreme Court recently held, 5-4, that employees with age discrimination claims could be compelled to arbitrate their claims pursuant to provisions in collective bargaining agreements. The decision, 14 Penn Plaza v. Pyett, may not have a dramatic effect on Unionized employers because on its face it applies only to agreements that give the arbitrator authority to adjudicate such claims. Report Link Supreme Court Rules that Arbitrable Counterclaim is No Key to Door of Federal Courthouse.Jackson Lewis LLP - March 17, 2009 The U.S. Supreme Court has held that in determining whether to order arbitration, federal courts should “look through” a petition to compel arbitration to determine whether it is predicated on a controversy that “arises under” federal law in accordance with the so-called well-pleaded complaint rule. This rule requires federal courts to examine the allegations and claims in the complaint to determine whether jurisdiction exists; jurisdiction cannot be predicated on defenses or counterclaims alone, even if they are subject to an agreement to arbitrate. Thus, a federal court may not entertain a petition to compel arbitration based on the contents of a counterclaim if the underlying substantive controversy otherwise does not qualify for federal court adjudication. Report Link Legislation Prohibiting Employment-Related Predispute Arbitration Agreements Introduced in CongressFord & Harrison LLP - February 20, 2009 Legislation has been introduced in Congress that would make predispute arbitration agreements in employment, consumer, and franchise disputes and disputes arising under civil rights statutes unenforceable. The legislation does not apply to arbitration provisions in collective bargaining agreements. Report Link Hotel's "Refusal" to Arbitrate Does Not Breach Arbitration Agreement.Fisher & Phillips, LLP - September 04, 2008 Employers with currently valid arbitration agreements should keep in mind that nothing lasts forever. Just as the world is constantly changing, so too are court decisions relating to implementation and enforcement of arbitration agreements always evolving. The case at issue involves the U.S. Court of Appeals for the Ninth Circuit, which covers ten states in the western United States. But circuits read each others' cases and the principles established by one are frequently applied elsewhere. This case points up the need to always be aware of any binding arbitration agreements and their details when dealing with employee issues. Report Link Careful What You Ask For... (4th Cir.)Ogletree Deakins - July 01, 2008 A recent Fourth Circuit case highlights potential pitfalls with class and collective action arbitrations. In Long John Silver’s Restaurants, Inc. v. Cole, et al., 514 F.3d 345 (4th Cir. 2008), the court affirmed an arbitrator’s award determining (i) the Fair Labor Standards Act’s (FLSA) “opt-in” collective action certification process was inapplicable to the arbitration proceedings, and (ii) employees could pursue an “opt out” class action. The award magnified the scope of the case by including all employees who fell within the definition of the putative class, not just those who filed consents to join the action. Report Link Judicial Review of Arbitration Awards under Federal Arbitration Act Limited to Grounds Authorized in the Act.Jackson Lewis LLP - April 03, 2008 The United States Supreme Court has ruled that when parties to arbitration agreements utilize the expedited review procedure provided by the Federal Arbitration Act (“FAA” or the “Act”), the judicial review available to them is limited to that which is provided for by the Act. Accordingly, parties to an arbitration agreement which contains a provision calling for expanded judicial review may not rely upon the FAA for enforcement of that provision. Report Link Supreme Court Reaffirms Limited Judicial Review of Arbitration Decisions Under FAA.Ford & Harrison LLP - April 02, 2008 The U.S. Supreme Court recently issued a decision reaffirming the limited grounds for judicial review of an arbitrator’s decision under the Federal Arbitration Act (FAA). See Hall Street Associates, L.L.C. v. Mattel, Inc. (March 25, 2008). Although Hall Street is not an employment case, the Court’s decision is relevant to employers because its reaffirmation of the limited grounds for judicial review of an arbitration award applies to awards issued by arbitrators in employment-related matters. Report Link Supreme Court Upholds Arbitration as Proper Forum for Challenges to Validity of Agreements with Arbitration Clauses.Jackson Lewis LLP - March 04, 2008 The United States Supreme Court has held that in cases arising under the Federal Arbitration Act (“FAA”), where a party challenges the enforceability of a contract that contains an arbitration clause, the arbitrator designated under the agreement must determine the validity of the agreement. State laws giving primary jurisdiction under such circumstances to another forum, whether judicial or administrative, are pre-empted by the FAA, the Court stated in its February 20 ruling. Report Link Federal Arbitration Act Trumps State Laws Lodging Primary Jurisdiction in State Administrative Forums.Littler Mendelson, P.C. - March 04, 2008 In Preston v. Ferrer, No. 06-1463 (Feb. 20, 2008) ("Preston"), the U.S. Supreme Court once again upheld the supremacy of the Federal Arbitration Act and confirmed that state laws that compel parties to submit claims to a state administrative forum are not enforceable and cannot defeat the parties' valid, enforceable agreement to submit such claims to arbitration. In a decision extending far beyond the narrow California state law at issue, employers across the nation have been given an additional tool for enforcing arbitration agreements in the employment context. Report Link Supreme Court Holds that FAA Overrides Conflicting State Law Jurisdictional Provision.Ford & Harrison LLP - February 25, 2008 Citing the national policy favoring arbitration established in the Federal Arbitration Act (FAA) and Southland Corp. v. Keating, the U.S. Supreme Court has ruled that the contractual agreement to arbitrate disputes preempts contrary state law frameworks. Writing for the Court in Preston v. Ferrer, decided on February 20, 2008, Justice Ginsberg held that the FAA overrides state laws that would lodge primary jurisdiction in another forum beside arbitration, regardless of whether that forum is judicial or administrative. Report Link Arbitration Agreements: Make Sure Your Employees Actually Sign Them.Fisher & Phillips, LLP - February 07, 2008 Many employers utilize binding arbitration to resolve employment-related disputes with their employees. The advantages of binding arbitration include savings of time and cost, limited discovery, a more expedited process than court procedures, and, hopefully, smaller attorney's fees. Report Link Court Declares Law Firm's Alternate Dispute Resolution Program Unconscionable and Unenforceable.Jackson Lewis LLP - May 22, 2007 The U.S. Court of Appeals ruled that an employer's alternate dispute resolution ("ADR") program was unconscionable under California law and thus was unenforceable. Davis v. O'Melveny & Meyers, No. 04-56039 (9th Cir. May 14, 2007). Specifically, the court found that the ADR program was procedurally unconscionable because it did not allow employees to opt out of the program. The court also found that the notice provision, the confidentiality provision, a limited exemption from arbitration for the employer, and the limitation on initiating administrative actions were overbroad and substantively unconscionable. The court declined to strike the overly broad provisions and declared the ADR program void. Report Link Ninth Circuit Rules That Law Firm’s Dispute Resolution Program Is Unconscionable.Ford & Harrison LLP - May 21, 2007 In yet another decision explaining what is, and is not, acceptable in employment-related mandatory arbitration procedures, the Ninth Circuit held that the program utilized by law firm O’Melveny & Myers (OMM) was both procedurally and substantively unconscionable. Report Link Arbitration of Employment Disputes in the Hospitality Industry.Elarbee, Thompson, Sapp & Wilson, LLP. - September 27, 2006 Over the past several years, the use of mandatory arbitration agreements has increased among hospitality employers. Such agreements generally require employees, as a condition of employment, to waive their right to a jury trial and have their disputes resolved by an arbitrator. A recent study published by the Center for Hospitality Research at Cornell University's School of Hotel Administration supports this trend, finding that arbitration has significant benefits over litigation as a way for hospitality industry employers to resolve employees' claims of discrimination. Report Link NLRB Finds Mandatory Arbitration Agreement Illegal.Ford & Harrison LLP - July 19, 2006 The National Labor Relations Board (NLRB) has held that a union-free employer committed an unfair labor practice in violation of the National Labor Relations Act (NLRA) by maintaining a mandatory arbitration policy as a condition of employment because that policy could inhibit employees from filing charges with the Board. See U-Haul Co. of California, Case 32-CA-20665-1, 347 NLRB 34 (June 8, 2006). Report Link Legal Alert: Fifth Circuit Finds USERRA Claims Subject to Arbitration.Ford & Harrison LLP - May 18, 2006 The Fifth U.S. Circuit Court of Appeals has held that claims under the Uniformed Services Employment and Reemployment Rights Act (USERRA) are subject to arbitration in accordance with employment-related individual arbitration agreements. Report Link Cost Provisions May Jeopardize the Enforceability of Agreements to Arbitrate Employment Disputes (pdf).Vedder Price - April 07, 2006 It is established law that an agreement between employer
and employee to arbitrate employment disputes, including
discrimination claims, is enforceable and precludes state
or federal court litigation of such disputes. Report Link Supreme Court Says Binding Arbitration Provisions Can Survive Otherwise Invalid Agreement.Jackson Lewis LLP - March 03, 2006 The U. S. Supreme Court has taken another step to solidify the enforceability of private agreements to arbitrate disputes. In a case arising outside the employment context, the Court has ruled that a contract may be invalid in all other respects, but the arbitration provisions are severable, may survive, and may be enforced. For employers implementing pre-dispute agreements to arbitrate job-related claims, this decision indicates the strength of such provisions independent of the legal sufficiency or validity of other contract terms. Report Link Use of AAA Rules for Selecting Arbitrator in Lieu of Unenforceable Selection Clause Upheld.Ford & Harrison LLP - February 20, 2006 The Sixth U.S. Circuit Court of Appeals recently upheld a trial court's order to use the American Arbitration Association's (AAA) rules for selecting an arbitrator after severing an unenforceable arbitrator selection clause from an employment related arbitration agreement. See McMullen v. Meijer, Inc. (Jan. 13, 2006). In this case, the employee challenged the arbitrator selection clause because it permitted the employer to chose a panel of arbitrators from which the parties would select an individual to arbitrate the employee's termination. In 2004, the Sixth Circuit held that this clause was unenforceable and remanded the case to the trial court to determine whether the clause could be severed from the arbitration agreement. Report Link First Circuit Provides Guidance to Employers Who Wish to Communicate Contractual Arrangements to Their Employees.Littler Mendelson, P.C. - June 17, 2005 In a recent decision, the U.S. Court of Appeals for the First Circuit considered what notice is adequate to bind employees to mandatory arbitration of employment disputes, finding that an employer’s mass e-mail to its employees announcing a new mandatory dispute resolution policy and providing a hyperlink to the policy was insufficient notice. Report Link A Marriage Made In Heaven, Modified On Earth, And Stuck In Purgatory.Jones Walker - August 11, 2004 Employment relationships, like marriages, don't always work out. At the beginning of any relationship, we always hope for the best, but often have to prepare for the worst. Like a prenuptial agreement for the betrothed, an arbitration agreement is one way an employer and applicant can plan for future disputes. Many employers consider arbitration an easy, cost-effective, private way to bring an end to what has become an unproductive employment union. However, if you don't cross your t's and dot your i's when putting the agreement in writing, a discharge can become just as ugly as a divorce. Report Link The Scope of Judicial Review of Arbitration Awards [PDF File].Hughes Hubbard & Reed LLP - December 10, 2003 If recent reported decisions are any guide, parties to arbitration agreements do not always find appropriate the standards used by federal courts to review arbitral awards. Report Link Arbitration Agreement Is Not Enforceable.Ballard Rosenberg Golper & Savitt - September 01, 2002 An arbitration agreement was found unenforceable by the Ninth Circuit because its fee and discovery provisions and its limitations on what issues could be arbitrated rendered the agreement procedurally and substantively unconscionable. Report Link Requiring Workers to Arbitrate May Not Always Be Employers' Best Option.Ballard Rosenberg Golper & Savitt - March 28, 2002 Given the outcome of recent court decisions, there is ample reason for employers to question whether arbitration is in fact a preferable forum. Report Link Circuit City's Arbitration Agreement Is Unenforceable.Ballard Rosenberg Golper & Savitt - March 01, 2002 Discusses Circuit City Stores, Inc. v. Adams, No. 98-15992 (9th Cir. February 4, 2002), in which the Ninth Circuit (on remand from the Supreme Court) held that the arbitration agreement in question was procedurally unconscionable because it was a contract of adhesion. Report Link Supreme Court Clarifies EEOC's Role in Litigating Employment Disputes Subject to Private Arbitration Agreement.Jackson Lewis LLP - January 21, 2002 Discusses EEOC v. Waffle House Inc., No. No. 99—1823, ___ U.S. ___ (January 15, 2002), in which the court held that the Equal Employment Opportunity Commission (EEOC) is not bound by an arbitration agreement between an employer and employee. Report Link arbitration of employment claims: here to stay.Fredrikson & Byron, P.A. - June 01, 2001 Discusses arbitration of employment disputes in light of Circuit City Stores, Inc. v. Adams, No. 99—1379, __ U.S. __ (March 21, 2001), in which the court held the Federal Arbitration Act ("FAA"), 9 U.S.C. § 1, permits employers to require employees to arbitrate work-related disputes. Report Link High Court's Enforcement of Arbitration Agreements Will Have a Significant Impact on the EPLI Community.Jackson Lewis LLP - May 01, 2001 Discusses the pros and cons of mandatory arbitration in wake of Circuit City Stores, Inc. v. Adams, 532 U.S. ___ (2001).
Report Link Supreme Court upholds private arbitration of employment disputes: employers can opt to keep employees out of court.Jackson Lewis LLP - April 01, 2001 Discusses Circuit City Stores, Inc. v. Adams, 532 U.S. ___(2001), in which the court held the Federal Arbitration Act ("FAA"), 9 U.S.C. § 1, permits employers to require employees to arbitrate work-related disputes; also discusses the effects of the court's decision and what employers should do now.
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ArticlesFound: 34 ArticlesSUBTOPICS Employment Law Seminars
2010 Ushers In Many Important Changes to Workplace Laws
Columbia
November 20, 2009 Fisher & PhillipsANNUAL EMPLOYMENT LAW UPDATESacramento
December 1, 2009 Shaw ValenzaMonthly Webinar: Preventing Workplace Harassment (California and National)Webinar
December 1, 2009 LittlerCalifornia Legally Required Sexual Harassment Training: It's Never Too Late to ComplySan Francisco
December 1, 2009 Fisher & PhillipsThe Constangy Management Training Center "Employment Law 201"Tampa
December 2, 2009 ConstangyCalifornia Legally Required Sexual Harassment Training: It's Never Too Late to ComplyOntario
December 2, 2009 Fisher & PhillipsAudio Conference: Employee Caregivers Dealing With DementiaAudio Conference
December 2, 2009 Young ConawayClients, Adversaries and Witnesses: The Ethics of Communication in a Fast-Paced Legal World Web CastWebinar
December 4, 2009 Ford & HarrisonTaking Executive Compensation Hostage; What To DoWebinar
December 8, 2009 Baker HostetlerPREVENTING HARASSMENT AND OTHER EEO ISSUES AT WORK: IT’S ALL ABOUT RESPECT (AB 1825 COMPLIANCE)Sacramento
December 9, 2009 Shaw Valenza |
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