On July 21, 2023, the U.S. Court of Appeals for the Ninth Circuit kept in place a ruling that local delivery drivers who made deliveries completely inside California are still engaged in interstate commerce and exempt from the Federal Arbitration Act (FAA).
The California Supreme Court recently held plaintiffs may pursue non-individual Private Attorneys General Act (PAGA) claims in court, even after their individual claims are sent to arbitration. The ruling departed from the Supreme Court of the United States’ holding in Viking River Cruises, Inc. v. Moriana.
On June 23, 2023, the Supreme Court of the United States held district court proceedings must be put on hold during an appeal on the question of whether claims are subject to arbitration. The ruling is a big win for businesses that had argued staying underlying cases is necessary to avoid costly litigation for claims that should be subject to valid arbitration agreements.
On February 15, 2023, the Ninth Circuit Court of Appeals blocked a 2020 California law that attempted to prohibit employers from requiring employees and job applicants to agree to arbitration as a condition of employment. The Court’s 2-1 panel decision in Chamber of Chamber of Commerce of the United States of America v. Bonta resolved ambiguity regarding the enforceability of California Assembly Bill (AB) 51.
Connecticut employers have seen a significant increase in legislation affecting their businesses over the last few years. The Connecticut General Assembly does not show any signs of slowing down. A slew of labor and employment bills have been proposed in the 2023 legislative session.
On December 9, 2022, the Supreme Court of the United States granted a petition for certiorari in a case raising the question of whether a non-frivolous appeal to the denial of a motion to compel arbitration strips the district court of jurisdiction of a case and therefore puts the case on hold.
On November 16, 2022, the U.S. Congress passed a bill that would limit enforceability of nondisclosure and nondisparagement provisions in pre-dispute agreements with employees and independent contractors relating to sexual harassment and sexual assault allegations. The bill, S. 4524, or the “Speak Out Act,” passed the U.S. House of Representatives with a vote of 315–109, the vote coming after the U.S. Senate passed the bill on September 29, 2022.
On October 17, 2022, the Supreme Court of the United States vacated a Ninth Circuit ruling addressing the scope of the “transportation worker” exemption from the Federal Arbitration Act (FAA). The FAA generally requires enforcement of arbitration agreements but exempts “transportation workers” from the statute’s application.
In Johnson v. Lowe’s Home Centers, LLC, a decision issued on September 21, 2022, a federal judge in the U.S. District Court for the Eastern District of California issued an order compelling arbitration of a plaintiff’s individual claims under the Private Attorneys General Act (PAGA) and dismissing the remaining representative PAGA claims.
The panel of the Ninth Circuit Court of Appeals that largely upheld California’s law banning mandatory arbitration agreements in the employment context just withdrew its decision. On August 22, 2022, two of the three judges on the panel decided to withdraw the panel’s prior opinion in Chamber of Commerce of the United States of America v. Bonta regarding Labor Code 432.6 which sought to prohibit mandatory arbitration as a condition of employment.
There is a new, but not entirely unexpected, front in the continuing war over California Labor Code Private Attorneys General Act (PAGA) claims. On July 20, 2022, the California Supreme Court granted review in Adolph v. Uber Technologies, Inc., opening the door for a ruling that potentially may complicate the relief provided to employers by the recent decision from the Supreme Court of the United States in Viking River Cruises, Inc. v. Moriana.
The COVID-19 pandemic did not slow down the pace of new California Private Attorneys General Act (PAGA) letters being filed with the state Labor Workforce Development Agency (LWDA), according to filing data. Instead, there was a significant increase in the filing of PAGA letters during the height of the COVID-19 pandemic in 2020 and 2021.
On June 15, 2022, the Supreme Court of the United States ruled in favor of Viking River Cruises Inc. in a case over whether it could use an arbitration agreement to force a lawsuit brought under California’s Private Attorneys General Act (PAGA) on behalf of aggrieved employees into arbitration. In Viking River Cruises, Inc. v. Moriana, No. 20-1573, the Supreme Court’s highly anticipated decision, the Court reasoned that the Federal Arbitration Act (FAA) requires the enforcement of an arbitration agreement that waived an employee’s right to bring individual claims through PAGA and that once those individual claims are sent to arbitration there is no standing to bring representative claims for violations of the California Labor Code on behalf of other aggrieved employees.
On June 6, 2022, the Supreme Court of the United States ruled that airline cargo loaders are exempt from the Federal Arbitration Act (FAA) under the statute’s “transportation worker” exemption.
It feels like a lifetime has passed since the #MeToo movement gained significant traction in October 2017 and began reshaping the workplace. The movement helped sexual harassment victims speak out and be heard and resulted in a marked uptick in filed sexual harassment claims.
On March 31, 2022, the Supreme Court of the United States issued a decision in Badgerow v. Walters, No 20-1143, addressing when federal courts have jurisdiction to rule on motions to confirm, modify, or vacate arbitration awards under the Federal Arbitration Act (FAA).
On March 30, 2022, the Supreme Court of the United States heard oral argument in a critically important case for California employers, Viking River Cruises, Inc. v. Moriana, Case No. 20-1573.
On February 23, 2022, the U.S. District Court for the Eastern District of Texas struck down the part of the interagency interim final rule implementing the “independent dispute resolution” (IDR) procedures created by the No Surprises Act, which took effect for calendar-year plans on January 1, 2022 (Texas Medical Association v. U.S. Department of Health and Human Services). Though the bulk of the rule remains in effect, the changes will impact health plans and the employers that sponsor them.
On February 10, 2022, the U.S. Senate passed S. 2342, the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021, just a few days after the U.S. House of Representatives passed the bill, H.R. 4445, on February 7, 2022. If signed by President Biden as expected, the bill would make predispute arbitration agreements or joint-action waivers invalid and unenforceable “with respect to a case which is filed” that “relates to” a sexual assault or sexual harassment dispute, “at the election of the person alleging” the misconduct.
On March 30, 2022, the Supreme Court of the United States will hear the matter of Viking River Cruises, Inc. v. Moriana, Case No. 20-1573. The Court will answer the question, “Whether the Federal Arbitration Act requires enforcement of a bilateral arbitration agreement providing that an employee cannot raise representative claims, including under PAGA.”
In a much-awaited decision, the Supreme Court of the United States indicated that it would consider whether the Federal Arbitration Act (FAA) preempts California’s rule prohibiting arbitration of Private Attorneys General (PAGA) claims under the California Labor Code. Depending upon the high court’s ultimate ruling, the case has the potential to upend wage and hour litigation in California.
On October 20, 2021, the U.S. Chamber of Commerce, the lead plaintiff challenging AB 51, filed a petition for rehearing en banc with the U.S. Court of Appeals for the Ninth Circuit, seeking to reverse the Ninth Circuit’s decision in Chamber of Commerce of the United States of America v. Bonta, No. 20-15291 (September 16, 2021), partially upholding AB 51.
Judge Shannon Frison, sitting in the Middlesex County Superior Court in Massachusetts, recently issued a ruling that highlights for employers the importance of providing complete and timely responses to requests for employee personnel files. Judge Frison’s ruling arose in the context of an employer’s motion to dismiss or compel arbitration in accordance with the terms of an arbitration agreement that the employer had failed to produce in response to a request for the employee’s personnel file.
In a split 2-1 decision that likely raises more questions than it answers, the Ninth Circuit Court of Appeals cast some doubt upon the ability of employers to implement mandatory arbitration agreements with their employees. In Chamber of Commerce of the United States of America v. Bonta, the Ninth Circuit upheld portions of California Labor Code section 432.6, which prohibits employers from making arbitration agreements a condition of employment and imposes significant criminal and civil sanctions for violations. The Ninth Circuit’s decision holds that arbitration agreements signed by parties remain enforceable (even if they violate section 432.6), while parties who refused to sign an arbitration agreement may still seek a remedy against the employer under the statute.
Arbitration agreements are intended to expedite the legal process while minimizing fees and costs. In reality, former employees and their counsel often resist submitting their employment claims to arbitration, resulting in protracted and expensive litigation before trial and appellate courts on the issue of whether there is an enforceable arbitration agreement. This year, the Supreme Court of Texas issued two key decisions that may provide employers with stronger legal grounds for enforcing their arbitration agreements.
On March 30, 2021, in Bossé v. New York Life Insurance Co. et al., the First Circuit Court of Appeals issued an important decision upholding the enforceability of an arbitration agreement that delegates the arbitrability of claims to an arbitrator, and not a court.
Mandatory arbitration clauses for employment disputes have received a great deal of attention in recent years. In the First Circuit, there is now more clarity regarding the factors used to determine the enforceability of online arbitration agreements.
With the onslaught of the pandemic in 2020, many employers were busy dealing with staffing issues, safety concerns, and COVID-19–related legislation. There may have been little to no time to address handbook policies. With many changes on the horizon in 2021 under President Biden’s administration and the adaptations in the working environment due to COVID-19, it may be a good time for employers to turn to the company handbook to ensure it is up to date. This article will highlight five areas to which employers may want to give special attention in 2021.
Over 1,500 COVID-19–related employment lawsuits were filed in the United States in 2020. Ogletree Deakins’ Interactive COVID-19 Litigation Tracker highlights the industries impacted, locations, and types of claims in these matters.
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.
