General Business Alternative Dispute Resolution (ADR) Labor & Employment

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Employment Law Alert: Parties Ordered to Arbitrate Despite Incomplete Arbitration Agreement

In Cruise v. Kroger Co., the Court of Appeal held a clear arbitration clause in an employment application, standing alone, was sufficient to establish the existence of an agreement between the employee and employer to...more

Supremes Leave PAGA Representative Claims Intact

On January 20, 2015, the U.S. Supreme Court denied review of CLS Transportation Los Angeles, LLC v. Iskanian ("Iskanian"), a case which would have determined whether employees in California could continue to bring...more

The Supreme Court’s denial of certiorari in Iskanian only hardens the federal-state divide over PAGA claims

The divide continues between California and federal law on whether an arbitration agreement can entirely waive an employee’s ability to seek classwide or multiparty representational relief. The Supreme Court on Tuesday denied...more

Employment Alert: Court Upholds Waiver of Employer’s Right to Arbitration

In Bower v. Inter-Con Security Systems, Inc., No. A135940, published December 31, 2014 (Bower), the California Court of Appeal, First Appellate District held that a defendant employer waived its right to arbitration based on...more

A Review of Recent Whistleblower Developments

SEC Whistleblower Office 2014 Annual Report Details Rising Number of Tips and Increasing Awards - On November 17, 2014, the U.S. Securities and Exchange Commission (SEC) Whistleblower Office issued its Fiscal Year 2014...more

AFL-CIO’s Industry Wide Agreement May Have Wide Reach in Hospitality Industry

Mid-way through 2012, the Hotel Association of New York City and the New York Hotel & Motel Trades Council, AFL-CIO (the “Union”), renewed a seven-year collective bargaining agreement known as the Industry Wide Agreement, or...more

The Widening California Divide: The Rejection of Iskanian by Federal District Courts and Potential Resolution

In an October 22, 2014, posting, we addressed the growing divide between California federal district courts and the California Supreme Court over whether an arbitration agreement can waive an employee’s right to pursue a...more

NLRB Reverses Board Precedent on Arbitration Deferral Standards

On December 15, 2014, a divided National Labor Relations Board (NLRB) - split along party lines - overturned 30-year-old precedent addressing standards for the deferral of certain unfair labor practice charges to contractual...more

Court Rejects Manifest Disregard Of Law Claim

A district court in Pennsylvania has denied a motion to vacate a prior arbitration award based on the arbitrator’s alleged manifest disregard of the law, and instead granted a motion to confirm the award in a case arising out...more

When Does an Anti-Arbitration Provision Not Prohibit Arbitration of a Dodd-Frank Whistleblower Claim?

The Dodd-Frank Wall Street Reform and Consumer Protection Act, enacted on July 21, 2010, provides broad whistleblower protections to individuals who report certain possible violations of federal securities laws. Mindful that...more

NLRB Again Attempts to Invalidate Mandatory Arbitration Clauses for Employment Claims

In its Murphy Oil decision, the National Labor Relations Board affirmed its 2012 holding in D. R. Horton, which found an employer violates the NLRA when it requires employees “as condition of their employment, to sign an...more

UPDATE: Third Circuit Affirms Arbitrability of Dodd-Frank Retaliation Claim in Khazin v. TD Ameritrade Holding Corp., ___ F.3d...

In March, we wrote about a ruling out of the District of New Jersey enforcing an arbitration provision contained in an employment agreement that pre-dated Dodd-Frank. The court reasoned that to disregard a pre-Dodd-Frank...more

Court Reverses Denial Of Petition To Compel Arbitration

In Mahmud v. Ralph’s Grocery Company, No. B237636 CA 2/4 (Nov. 10, 2014), the California Second Appellate District reversed and remanded a trial court denying the petition of an employer (Ralph’s) to compel arbitration of a...more

Bernstein Shur Business and Commercial Litigation Newsletter #46

We are pleased to present the 46th edition of the Bernstein Shur Business and Commercial Litigation Newsletter. This month, we highlight recent cases that address class actions pending against Silicon Valley companies,...more

Case Studies on Labor Dispatch

“Labor dispatch” is an arrangement under which an employee is hired by an employment agent (i.e., nominal employer) and then dispatched to work for another company (i.e., actual employer). Typically, there would be (i) an...more

NLRB Reaffirms Noel Canning Position on Use of Class Waivers in Arbitration Agreements

In its Noel Canning decision earlier this year, the U.S. Supreme Court vacated numerous decisions made by the National Labor Relations Board based on lack of a required quorum. The Court decided that President Obama’s recess...more

Trade & Manufacturing - News of Note - November 2014

United States Announces Settlements Of WTO Disputes With Brazil and Indonesia - In October, the United States settled two long-running disputes at the World Trade Organization (WTO) – one with Brazil over cotton...more

NLRB Reaffirms 2012 D. R. Horton Decision

The decision holds that arbitration agreements with class and collective action waivers violate the National Labor Relations Act. On October 28, the National Labor Relations Board (NLRB or the Board) held fast to its...more

Quirky Question #245, Last chance agreements

We operate a manufacturing plant with a union workforce where new employees begin with a 90-day probationary period during which they are not yet members of the union. I recently hired a guy who refused to work overtime on...more

No Class Action Waivers in Arbitration Agreements, Says NLRB

The National Labor Relations Board (NLRB) has decided to follow its own oft-criticized 2012 decision in D.R. Horton, holding that arbitration agreements barring class action lawsuits about working conditions, which are signed...more

In California, Who Decides If An Arbitration Agreement Covers Class Arbitration?

Network Capital Funding Corp. v. Papke, No. G049172 (October 9, 2014): A California Court of Appeal recently held that absent “clear and unmistakable” language in an arbitration agreement authorizing an arbitrator to decide...more

The EEOC’s Assault on Separation Agreements – A Bump in the Road, But It’s Far From Over

Most employers have separation agreement forms that have served them well over the years. The terms have become fairly standardized and, aside from the occasional tweak, they don’t change much and are rarely challenged. ...more

Including PAGA Representative Action Waivers in Arbitration Agreements Post-Iskanian

After the California Supreme Court’s recent decision in Iskanian v. CLS Transportation, which held that PAGA representative action waivers are unenforceable under California law, employers have struggled with whether to...more

Fifth Circuit Hands Down Mixed Ruling on Validity of Later-Added Arbitration Clause

Employers must always be careful when adding an arbitration clause to an existing employment agreement. The amendment process becomes even trickier when the employment relationship is governed by multiple documents.That was...more

Failure to Disclose Procedures Dooms Arbitration Agreement

As a general rule, courts will uphold agreements that require employees to arbitrate their employment disputes. But an employer seeking to compel arbitration must show that the employee signed a valid written arbitration...more

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