Rojgar Job News

One of the interesting strains to come out of the new round of publicity surrounding sexual harassment is a renewed focus on mandatory arbitration provisions. And it comes from an unexpected source: former Fox News anchor Gretchen Carlson. Indeed, Carlson recently gave an interview with former ESPN producer and self-titled “Commander-in-She” Valerie Gordon that may have slipped under radar in which she talks about such provisions. She notes that mandatory or “forced” arbitration provisions enable sexual harassment to exist under the radar. I’m doing some advocacy work on Capitol Hill, working on gathering bipartisan support to take the secrecy out of arbitration.  You know the forced arbitration in employment contracts makes these things secret.  We have to stop the silence around it. In another recent interview, Carlson suggested that these arbitration provisions are often “in the fine print” and not focused on when people s...

Suppose there’s an old employment agreement between the employer and employee. Then the employer fires the employee. But there’s been a few intervening events and it’s not exactly clear that the employment agreement still applies. Indeed, there’s another contract (let’s call it an supplier agreement) that seems to provide an independent basis for ending the relationship. Nevertheless, the employment agreement contains an arbitration provision.  Are the parties still required to go to arbitration even when one party (namely the employer) argues the contract is void? Yes, says a new Connecticut Appellate Court decision called Stack v. Hartford Distributors, Inc.. (For background, the employment lawyers out there should look first at a 2007 Supreme Court case that established the strong preference to enforcement of arbitration provisions, which you can find here.  The rest of us can carry on.) For the court, it noted that the employer appears to ...

There is news in the employment law world beyond sexual harassment.  Arbitration clauses to be exact. Yesterday, the Second Circuit issued a small, but important decision for employers that will continue to limit FLSA wage & hour claims. The court ruled that an employee’s FLSA claims in court were barred by the arbitration clause contained in his employment agreement.  While it isn’t the first time, it’s clear logic will be tough to ignore. (The case, Rodriguez-Depena v. Parts Authority, Inc. et al can be downloaded here.) For the court, it was not even a close call. The court ruled that the Supreme Court’s pronouncement years ago that age discrimination claims were barred by an arbitration clause controlled. The court also looked at whether its decision in the Cheeks v. Freeport Pancake House, Inc. – which required oversight of settlements of FLSA claims — precluded arbitration. The court said it did not. The rationale of Cheeks, h...

As I noted earlier this week, the U.S. Supreme Court has approved of the use of class action waivers in arbitration agreements with employees. My colleague, Gabe Jiran, has a recap of Epic Systems v. Lewis on my firm’s blog, Employment Law Letter, that you can access here. So, it’s a foregone conclusion that employers of all shapes and sizes will start using arbitration agreements and insert provisions with class action waivers, right? Not so fast. As Jon Hyman astutely noted in his Ohio Employer’s Law Blog yesterday, this decision may not be the panacea employers are looking for. For example, it might end up being more costly for employers because arbitration may be more costly than litigation. Moreover, these costs only increase if you are arbitrating dozens, or hundreds, or thousands, of individual claims instead of one class or collective action. Don’t think for a second that this decision will end wage and hour litigation. Instead, plaintiffs’ lawyers,...

In an important 5-4 decision, the U.S. Supreme Court this morning held, for the first time, that class or collective action waivers, particularly in wage/hour cases, and contained in arbitration agreements between employers and employees are valid and enforceable. Because wage and hour class and collective actions are quite costly for employers to defend against, this decision should cause employers in Connecticut (and nationwide) to re-evaluate their employment relationships with employees and consider enacting wide-ranging arbitration agreements that include class-action and collective action waivers. The decision in Epic Systems Corp. v. Lewis (download here) was just released at 10 a.m. this morning, so I’ll have more in an upcoming post after I’ve had time to digest it, but here’s the summary from the Supreme Court itself: In each of these cases, an employer and employee entered into a contract providing for individualized arbitration proceedings to resolve emplo...

Back in 2011, I wondered aloud: Might the impact of new arbitration decisions from the U.S. Supreme Court bring about the end to big wage & hour class actions? At the time, I said it would be premature. Seven years later – what’s changed? Well, as it turns out, wage & hour class actions are not dead. Indeed, based on some statistics, they’re as costly as ever. Earlier this year, the Workplace Class Action Litigation report noted that just the top  ten class action settlements totalled over $2.72  billion in 2017 . I’d say the class action is still very much alive and well. Yet there are still signs on the horizon that employers may be able to fight back a bit on these claims. Late last month, the Ninth Circuit shot down a potential class action against Uber, on the grounds that the arbitration provision barred class actions.   It’s a significant victory for the company and highlights a way for companies to push back against the ...

In a few weeks, the Connecticut Supreme Court will begin it’s next session.  As I looked at the calendar assignment for the first term, what I began to realize is something that’s been gnawing at me for a while — there’s not an employment law case to be found on the docket. Then I started to look back at last year’s session (2018-2019).  Term after term. Where were the employment law cases? Unless I missed something, there wasn’t an employment law case to be found  anywhere on last year’s case docket.   (The only two that were even in the same neighborhood concerned a procedural requirement of the Municipal Employee Indemnification Statute, and a Labor Arbitration issue.) In fact, I had to go back to the summer of 2017 to find the last major employment law case that the Connecticut Supreme Court considered.  That case — on the fluctuating workweek — at least gave us some guidance on a thorny wage & hour i...

If you’ve been following our blog, you already know that the topic of employer-mandated arbitration agreements has been a hot issue in recent years for government agencies and in the state and federal courts.  Most notably, in May of last year, the United States Supreme Court issued its highly-anticipated decision in Epic Systems v. Lewis , in which it confirmed that employers may require employees to enter into mandatory arbitration agreements as a condition of employment without violating the National Labor Relations Act (“Act”).  As you may recall, Epic Systems arose out of dispute in which the National Labor Relations Board (“NLRB” or “Board”) took the position that employer-mandated arbitration agreements requiring that employees waive the right to engage in class or collective litigation are unenforceable because Section 7 of the Act protects an employee’s right to engage in protected concerted activity, which the NLRB arg...

Our colleagues Colter Paulson and Justin DiCharia at the Sixth Circuit Appellate Blog (which covers, as you may have guessed, developments in the U.S. Court of Appeals for the Sixth Circuit) authored the post below discussing the Sixth Circuit’s recent decision in a case in which the Court was tasked with deciding whether an employer may enter into agreements with its employees to shorten the time period for filing of employment discrimination claims under Title VII of the Civil Rights Act of 1964. Employers in the Sixth Circuit may want to review their employment contracts following a recent decision in which the court ruled that employers cannot contractually shorten the statutory limitations period for Title VII claims—except in the arbitration context. In  Logan v. MGM Grand Detroit Casino , Judge Bush (with Judges Boggs and Gibbons joining) explained that Title VII’s 300-day statute of limitations for discrimination claims is a substantive right granted by Co...

California Governor Gavin Newsom just signed a new batch of worker-friendly laws sponsored by Democrats in the California Assembly and Senate.  These laws cover a range of topics from arbitration agreements to workplace safety. AB 51 will garner particular attention because not only does it substantially prohibit arbitration agreements, it criminalizes them.  The new law applies to contracts for employment entered into after January 1, 2020.  It precludes requiring an applicant or employee, “as a condition of employment, continued employment or receipt of any employment-related benefit . . . to waive any right, forum or procedure” for any claim arising under California’s Labor Code and its Fair Employment and Housing Act.  The lawmakers anticipated that employers might try to sidestep this law by including an opt-out provision in otherwise mandatory arbitration programs.  To that end, the law also provides that “an agreement that requires...

On December 17, 2019, the U.S. Equal Employment Opportunity Commission (“EEOC”) rescinded its 22-year-old policy statement disapproving of mandatory employment arbitration agreements for workplace bias claims.  The agency’s 2-1 decision to retract this policy was in direct response to numerous U.S. Supreme Court rulings that support the use of such agreements.  EEOC’s 1997 Policy Statement The EEOC’s 1997 Policy Statement on Mandatory Binding Arbitration of Employment Discrimination Disputes as a Condition of Employment strongly opposed the use of such agreements, concluding that “[t]he use of unilaterally imposed agreements mandating binding arbitration of employment discrimination disputes as a condition of employment harms both the individual civil rights claimant and  the public interest in eradicating discrimination.”  The agency reasoned that the federal government has the primary responsibility for enforcing federal em...

January 10, 2020 Update to AB 5 Challenges Trucking Industry :  On Wednesday, January 8, 2020, a California state court ruled that AB 5 does not apply to the trucking industry because the state statute is preempted by federal law.  This state court ruling lays a solid foundation for the federal court hearing on the trucking industry’s request for a preliminary injunction on January 13, 2020 based on the same federal preemption argument.  The Federal Aviation Administration Authorization Act of 1994 prevents states from enacting laws that affect the prices, routes, or services of trucking companies in transporting goods.  The court found on January 8 that AB 5 does just this because it effectively bars trucking companies from using independent contractor drivers. Uber and Postmates :  Also on January 8, 2020, Uber, Postmates, and two of their drivers moved for a preliminary injunction to bar AB 5 from being enforced against gig-economy companies a...

On April 16, 2020, a three-judge panel of the Court of Appeals for the First District Court of Texas held that an employer could compel a former employee to arbitrate her wrongful termination case, even though it had not signed the arbitration agreement, because the evidence demonstrated that the employer intended to be bound by the agreement and there was no evidence that the parties intended for the employer’s signature to be a condition precedent to the contract’s enforcement. In SK Plymouth, LLC et al. v. Simmons , the plaintiff brought a wrongful termination suit against her former employers SK Plymouth, LLC, SK E&P Operations America, LLC (SKEPOA), and her former supervisor (collectively the “Appellants”), claiming that her employment was terminated in retaliation for reporting her supervisor’s harassing conduct to the human resources department.  Specifically, the plaintiff alleged that her supervisor mistreated her based on her gender, race...

The National Labor Relations Board continues to clarify and update employers’ obligations in key areas. As discussed below, one recent decision clarifies when employers may enter into arbitration agreements that require employees to keep the proceedings confidential. Another recent decision rescinded a rule issued by the Obama-era NLRB and clarified, for employers who are negotiating their first contract with a labor union, when the employers may discipline employees. NLRB Upholds Confidentiality Provision in Arbitration Agreement The first decision, California Commerce Club, Inc. , provides important clarification for all employers. As background, in many situations, the NLRB deems it unlawful for an employer to bar employees from discussing certain terms and conditions of employment. The NLRB takes the position that certain such confidentiality rules can unlawfully restrict employees from engaging in “protected concerted activities,” such as communicating as part of ...