On January 5, 2021, New York City Mayor Bill de Blasio signed legislation that effectively ends at-will employment for fast food employees in New York City. The new law takes effect on July 4, 2021, and would make New York City the nation’s first jurisdiction to create job protections for a particular industry. However, at least some portions of the new law may be ripe to challenge on federal preemption and other grounds.
Recently, and for the first time in more than 20 years, the United States Court of Appeals for the First Circuit ruled on the transportation worker exemption contained in Section 1 of the Federal Arbitration Act (FAA). In Waithaka v. Amazon.com, Inc., 966 F.3d 10 (1st Cir. 2020), the court of appeals upheld a district court’s decision not to compel Amazon “AmFlex” delivery drivers (who are independent contractors) to arbitrate their wage claims. The decision is significant for companies that require their delivery drivers to sign arbitration agreements.
For the second time in a little over one month, the Supreme Court of New Jersey has issued an employer-friendly ruling upholding the enforceability of arbitration agreements in the employment context.
On May 21, 2018, in Epic Systems Corporation v. Lewis, the Supreme Court of the United States upheld class action waivers in arbitration agreements, ruling that the Federal Arbitration Act (FAA) instructs “federal courts to enforce arbitration agreements according to their terms—including terms providing for individualized proceedings.” On July 14, 2020, the Supreme Court of New Jersey handed down a landmark decision of its own upholding the enforceability of employment arbitration agreements with class action waivers under the New Jersey Arbitration Act (NJAA), even if the agreements are exempted from the coverage of the FAA, by virtue of the FAA’s Section 1 “transportation worker exemption.”
On April 30, 2020, the Supreme Court of California issued its decision in Nationwide Biweekly Administration, Inc. v. Superior Court of Alameda County, a case that received a fair amount of attention in 2019 when it seemed possible the court might allow claims under California Business & Professions Code Sections 17200 et seq. and 17500 et seq. (commonly called the unfair competition law (UCL)) to be tried by jury.
After more than two years of deliberation, the United States-Mexico-Canada Agreement [T-MAC in Mexico] will enter into force on July 1, 2020. The three-nation agreement includes a key element employers may want to take note of—employers and unions will be able to negotiate disputes through alternative methods of dispute resolution.
The Court of Appeals for the First District of Texas recently held that the absence of the employer’s signature from an arbitration agreement did not render that agreement unenforceable. SK Plymouth, LLC v. Simmons, No. 01-19-00433-CV (April 16, 2020). Central to the court’s holding was the absence of any language in the arbitration agreement indicating that the employer’s signature was a condition precedent to the enforcement of the agreement.
Although the Supreme Court of the United States has not yet taken up the issue, California courts routinely hold an employee cannot be compelled to submit to arbitration an action seeking penalties under the Private Attorneys General Act of 2004 (PAGA), although the employee may be compelled to arbitrate his or her individual wage claims. In determining whether a litigant seeks individual damages and therefore may be compelled to arbitrate wage claims, does the plaintiff’s Labor and Workforce Development Agency (LWDA) notice letter control?
The Illinois Workplace Transparency Act (WTA) (Public Act 101-0221) is designed to protect employees, consultants, and contractors who truthfully report alleged unlawful discrimination and harassment or criminal conduct in the workplace by prohibiting nonnegotiable confidentiality obligations, waivers, and mandatory arbitration of allegations of discrimination, harassment, or retaliation.
In Thomas v. Hyundai of Bedford, No. 108212 (January 23, 2020), the Eighth District Ohio Court of Appeals held that an arbitration clause in an employment contract was substantively and procedurally unconscionable because it sought to include as arbitrable all conceivable claims between the parties, even those outside the employment relationship. The Eighth District’s decision serves as a reminder of the benefits of well-tailored arbitration agreements.
Assembly Bill (AB) 51, which attempts to ban certain mandatory arbitration agreements, was scheduled to go into effect on January 1, 2020. However, a coalition of business organizations filed a suit on December 9, 2019 seeking to enjoin AB 51.
Arbitration is a strongly favored federal policy and generally can be relied on to resolve even statutory discrimination claims. This is not a novel concept in federal jurisprudence from the Supreme Court of the United States down (although California and the Obama-era National Labor Relations Board (NLRB) have and had a different view).
As discussed in our prior article, California recently enacted Assembly Bill (AB) 51, a law that attempts to ban certain mandatory employment arbitration agreements in the state.
On November 22, 2019, the United States Court of Appeals for the Eleventh Circuit, the court with jurisdiction over Alabama, Florida, and Georgia, handed down a decision that invalidates certain provisions in arbitration agreements in Fair Labor Standards Act (FLSA) wage and hour cases.
On October 10, 2019, California Governor Gavin Newsom signed into law a state statute purporting to prohibit employers from requiring employees to enter into certain types of arbitration agreements. This new law is creating significant uncertainty and anxiety among employers. What is the practical impact of AB 51 in light of its possible preemption by the Federal Arbitration Act (FAA) and other potential challenges to its limits on arbitration?
California is set to become the only state to outlaw predispute mandatory arbitration of statutory employment claims. On October 10, 2019, Governor Gavin Newsom signed California Assembly Bill (AB) 51, which prohibits employers from requiring employees to arbitrate claims arising under the California Fair Employment and Housing Act (FEHA) and related employment statutes.
In February 2019, the Arizona Court of Appeals, Division One ruled that the Arizona State Legislature overstepped its authority in 2016, when it prohibited Arizona cities and other municipalities from enacting their own employee benefits ordinances. On August 27, 2019, the Arizona Supreme Court denied review of the Court of Appeals decision.
On August 14, 2019, the National Labor Relations Board (NLRB) issued a ruling clarifying several mandatory arbitration issues following the 2018 decision by the Supreme Court of the United States in Epic Systems Corp. v. Lewis.
In Dorman v. Charles Schwab Corp., No. 18-15281 (August 20, 2019), the Ninth Circuit Court of Appeals recently held that a 401(k) plan participant was required to individually arbitrate his claims regarding the plan’s fees and investment options, pursuant to the plan’s arbitration provision.
In 20/20 Communications, Inc. v. Crawford, the U.S. Court of Appeals for the Fifth Circuit recently ruled that the question of whether a dispute can be arbitrated on a class-wide basis is a threshold issue that is presumptively for a court, not an arbitrator, to decide. This is the latest in a series of decisions by the Supreme Court of the United States and courts of appeals in favor of arbitration agreements that waive class procedures.
Like many other states, Washington recently adopted legislation seemingly preventing the arbitration of harassment and discrimination claims in direct response to the #MeToo movement.
In response to the #MeToo movement, a number of states have adopted legislation addressing sexual harassment claims. These include Maryland, New Jersey, New York, and Washington. Some of these state statutes attempt to ban or restrict arbitration for sexual harassment claims.
On March 18, 2019, Governor Phil Murphy signed into law Senate Bill 121 (S121), which amends the New Jersey Law Against Discrimination (NJLAD) in two important respects, effective immediately.
The U.S. Court of Appeals for the Fifth Circuit Court recently issued an opinion with major implications in In re: JPMorgan Chase & Company that impacts collective actions under the Fair Labor Standards Act (FLSA).
In an unpublished decision, the California Court of Appeal, Third Appellate District denied an employer’s motion to compel arbitration of a former employee’s Private Attorneys General Act (PAGA) claims.
On January 15, 2019, the Supreme Court of the United States held that the Federal Arbitration Act (FAA) did not apply to wage claims brought by an interstate truck driver, even though the plaintiff was classified as an independent contractor.
On January 8, 2019, the Supreme Court of the United States decided whether courts may disregard contractual language calling for an arbitrator to decide questions of arbitrability if the argument that the arbitration agreement applies to the particular dispute is “wholly groundless.” The Court ruled that a “wholly groundless” exception is inconsistent with the Federal Arbitration Act (FAA), and courts are not free to override the terms of parties’ agreements to arbitrate.
It’s time for our annual holiday season blog on the status of arbitration agreement enforceability in Missouri.
In a matter of first impression before the Seventh Circuit Court of Appeals involving an issue left open by the Supreme Court of the United States, a Seventh Circuit panel issued an opinion on a key threshold question of class arbitrability. The question was who decides—a court or an arbitrator—whether arbitration can proceed on a class or collective basis.