Bass, Berry & Sims attorney Chris Lazarini analyzed a court's decision finding an arbitration agreement is valid and enforceable even when located in an employee handbook containing a general disclaimer that the handbook is not a contract of employment, where the arbitration agreement is distinct and mandatory and where the employee is advised that compliance with it is a condition of employment or continued employment.

Chris provided the analysis for Securities Litigation Commentator (SLC). The full text of the analysis is below and used with permission from the publication.

Ngo vs. Oppenheimer & Co., Inc., No. 1:17-cv-1727 (S.D. N.Y., 11/30/17) 

An Arbitration Agreement is valid and enforceable even when located in an Employee Handbook containing a general disclaimer that the Handbook is not a contract of employment, where the Arbitration Agreement is distinct and mandatory and where the employee is advised that compliance with it is a condition of employment or continued employment. 

After working for Oppenheimer for several years, Plaintiff took parental leave in June 2014. While out, Plaintiff suffered a brain aneurysm, extended his leave and finally returned to work in November 2014. Around this time, Oppenheimer revised its employee handbook. The handbook contained an Arbitration Agreement and stated that it was not a contract of employment. Plaintiff acknowledged receipt of the handbook and electronically affirmed his agreement to abide by the Arbitration Agreement. After reducing Plaintiff's responsibilities and cutting his bonuses, Oppenheimer terminated Plaintiff in June 2016. Plaintiff filed this suit alleging that he was terminated in retaliation for taking paternal and medical leave. Before the Court is Oppenheimer's motion to dismiss or stay the action and to compel arbitration.

The Court considers whether the Arbitration Agreement is valid and enforceable and, if so, whether the action should be dismissed or stayed. It has no trouble finding that the parties agreed to arbitrate because the Agreement stated that it must be signed as a condition of Plaintiff's continued employment, it was in fact signed and Plaintiff was employed for almost two more years. Plaintiff challenged the enforceability of the Agreement, however, relying on the handbook's disclaimer that it was not a contract of employment. The Court disagrees, referencing the distinct formatting of the Arbitration Agreement within the handbook, the clear and binding nature of its language and Plaintiff's separate electronic acknowledgement of his agreement to be bound by it. Its remedy is to stay the action pending resolution of the arbitration proceeding. Had Oppenheimer wished for dismissal, the Court states, it might have requested that relief alone, but the text, structure and policy of the FAA require a stay if one is requested in the alternative or otherwise.