Alternative Dispute Resolution (ADR) Labor & Employment Civil Procedure

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Your Collective Action Waiver May Not Survive in a Vacuum: 6th Circuit Says Arbitration Was Key to Enforcing Waiver of FLSA Claims

The Sixth Circuit Court of Appeals recently noted in Killion et al. v. KeHE Distrib., LLC, Nos. 13-3357/4340 (6th Cir. Jul. 30, 2014) that it was the first appellate court to tackle head on the question of whether a...more

California Court Determines Arbitrator Must Decide Whether Class Claims Are Subject to Arbitration Agreement

When an employee who has signed an arbitration agreement files a lawsuit alleging individual claims along with class action claims, and the trial court has ordered him to take his individual claims to arbitration, what...more

Court of Appeals Upholds Employer’s “Incomplete” Mandatory Arbitration Agreement

In a development that was all too scarce just a few years ago, another California court has issued a decision upholding a mandatory employment arbitration agreement. In Cruise v. Kroger Co., the California Court of Appeals...more

Want to Arbitrate Employee Disputes? Keep Your Paperwork!

Arbitration agreements, and their use as a means to avoid class action disputes in particular, have been repeat news items in the last several years, and many companies continue to consider their use as a means to mitigate...more

California Court Interprets Vague Language in Arbitration Agreement in Favor of Employee

Rebolledo v. Tilly’s Inc., No. G048625 (July 8, 2014): In a recent decision, a California Court of Appeal held that an employer cannot compel arbitration of a wage claim when the language in the parties’ arbitration agreement...more

Third Circuit Denies Employees’ Petition For Rehearing In Class Arbitration Case

The Third Circuit Court of Appeals this week denied a petition for rehearing by the panel and the Court en banc in the Opalinski v Robert Half International, Inc. matter, where last month it held that the availability of...more

Executive Labor Summary - July/August 2014

NLRB extends Weingarten right of union representation to drug and alcohol test situations - On July 31, a three-member panel of the National Labor Relations Board in Ralph's Grocery Co. ruled that a union-represented...more

Is a FLSA Collective Action Waiver by Itself in a Severance Agreement Enforceable? Sixth Circuit Says “No.”

Employers have recently enjoyed some victories in the U.S. Supreme Court and in the California Supreme Court regarding the use of class/collective action waivers in employment arbitration agreements (e.g. Italian Colors and...more

Coerced Arbitration Agreement Not Enforceable in FLSA Collective Action

The Eleventh Circuit has affirmed a district court's decision denying an employer's motion to compel the arbitration of a Fair Labor Standards Act (FLSA) collective action, finding that the court's decision was within its...more

Got Proof? Court Requires Proof Employees Signed Arbitration Agreement to Compel Arbitration

Arbitration agreements, and their use as a means to avoid class action disputes in particular, have been repeat news items in the last several years, and many employers continue to consider their use as a means to mitigate...more

Trends in New Jersey Employment Law - August 2014

LAD Roundup - In recent weeks, New Jersey's primary employment discrimination statute—the Law Against Discrimination (LAD)—has been the focus of judicial scrutiny....more

Employer Cannot Compel Former Employee to Arbitrate Claims After Failing to Follow Preliminary Steps of the Contractual...

The issue before the Court of Appeal for the Second Appellate District was whether KTLA, LLC, a Los Angeles based broadcaster, could compel a former employee, Kurt Knutsson, to arbitrate his claims against KTLA. (Knutsson v....more

Fenwick Employment Brief - August 2014

Partial-Day Leave Deductions Lawful for Exempt Employees - A California court of appeal recently confirmed that employers may require exempt employees to use accrued leave for partial-day absences, even if shorter than...more

The Third Circuit Joins The Sixth And Holds That The Availability Of Class Arbitration Is A Substantive Question Of Arbitrability...

“Because of the fundamental differences between classwide and individual arbitration, and the consequences of proceeding with one rather than the other, … the availability of classwide arbitration is a substantive ‘question...more

West Virginia Supreme Court Upholds the Enforceability of Employer's Alternative Dispute Resolution Program

Employers in West Virginia who want to avoid litigating employment disputes in the courts received a significant victory. The West Virginia Supreme Court recently upheld a company's alternative dispute resolution (ADR)...more

Clothing Retailer Cannot Force Arbitration of Wage and Hour Claims Where Agreement Specifically Excluded Matters Within Labor...

In deciding Tilly’s Inc.’s appeal to send a former warehouse employee’s proposed class action to arbitration, the Court of Appeal for the Fourth District of California held that arbitration provisions contained in the...more

Sixth Circuit Refuses to Uphold Collective Action Waiver Absent Arbitration

My working title for this blog was “collective action grab bag,” concerning the recent Sixth Circuit case in Killion v. KeHE Distributors, LLC, Case Nos. 12-3357/4340 (6th Cir. July 31, 2014). I went with the title that...more

Third Circuit Says Classwide Arbitration a Matter for Courts to Decide

The U.S. Court of Appeals for the Third Circuit ruled last week that courts, not arbitrators, should determine whether an agreement between two parties to arbitrate employment disputes allows for classwide arbitration....more

FLSA Collective Action Waivers In Separation Agreements May Not Be Valid In 6th Circuit

Employees discharged as part of a company restructuring can participate in a collective action lawsuit for unpaid overtime wages under the Fair Labor Standards Act (FLSA) despite waiving their collective action rights in...more

California Appellate Court Upholds Delegation Clause In Arbitration Agreement

The issue before the California Appellate Court was whether the trial court erred in enforcing a delegation clause in an arbitration agreement governed by the Federal Arbitration Act (“FAA”), and granting the defendant’s...more

Third Circuit Holds That a Court, Not an Arbitrator, Must Decide Whether an Arbitration Agreement Authorizes Class-wide...

Who decides whether an arbitration agreement allows for class-wide arbitration — a court or an arbitrator? In the wake of mixed signals from the U.S. Supreme Court, lower courts have been reluctant to answer this question....more

Ninth Circuit Finds Revisions To Arbitration Policy In Employee Handbook Effective And Enforceable

The Ninth Circuit recently reversed a district court’s denial of a motion to compel arbitration of an employee’s claims that were brought as a putative class action against her employer, Nordstrom. The basis for the motion to...more

Third Circuit Holds that Courts, Not Arbitrators, Should Rule on Classwide Arbitration

In Opalinski v. Robert Half International, Inc., the United States Court of Appeals for the Third Circuit held that where an arbitration clause is silent as to the availability of classwide arbitration, that issue should...more

July 2014 Monthly Independent Contractor Compliance and Misclassification Update

The leading development this month in the area of independent contractor compliance and misclassification is an Arizona case that deals with a commonplace event – but one that carries with it the potential for unanticipated...more

Third Circuit Rules Class Arbitration a Question for the Courts

In a precedential ruling, the U.S. Court of Appeals for the Third Circuit in Opalinski v. Robert Half Int’l recently held that a federal judge—not an arbitrator—should decide whether an agreement between individuals to...more

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