John Lewis at BakerHostetler

Fifth Circuit Finds That Airport Supervisor Is Not Exempt From Arbitration

Once again, a court has considered the criteria for the transportation worker exemption from the Federal Arbitration Act (FAA), 9 U.S.C. § 1. This time an account manager for ISS Facility Services Inc., Heidi Eastus, who...more

6/2/2020 / Aviation Industry , Federal Aviation Administration (FAA)

The Third Circuit Demonstrates That Arbitration Rules Really Do Matter

Some may have wondered whether mentioning the rules of an administrative organization, such as the American Arbitration Association (AAA), in an arbitration agreement could have a legal impact. It can. A number of decisions...more

5/5/2020 / American Arbitration Association , Arbitration , Arbitration Agreements , Class Action

Another Court Rules on When Ride-Sharing Drivers Are Exempt From Arbitration

In this time of concern regarding the COVID-19 pandemic, there are other challenges still confronting companies. One involves the standard for enforcing arbitration agreements involving transportation workers. Or, stated...more

4/6/2020 / Arbitration , Automobile Passengers , Categorical Exemptions , Class Action Arbitration Waivers , Coronavirus/COVID-19 , Corporate Counsel , Delivery Drivers , Drivers , Federal Arbitration Act , GrubHub , Interstate Commerce , New Prime v Oliveira , Ridesharing , Small Business , Transportation Industry , Uber

California Supreme Court Creates More Problems for Employers Under PAGA

As we have noted throughout the years, interpreting the California Private Attorneys General Act (PAGA) can be a difficult task. California adopted PAGA to support the state Labor and Workforce Development Agency’s...more

3/18/2020 / Arbitration , Arbitration Agreements , CA Supreme Court , Employment Litigation , Private Attorneys General Act (PAGA)

District Court Preliminarily Enjoins Enforcement of California’s A.B. 51 Anti-Arbitration Law

Since Oct. 11, 2019, we have been blogging about California’s new anti-arbitration law and the injunctive action filed before Chief District Judge Kimberly J. Mueller to enjoin it....more

2/4/2020 / Arbitration , Arbitration Agreements , Federal Arbitration Act , Preliminary Injunctions , State Labor Laws

Seventh Circuit Now Addresses When Notices of Collective Action Can be Given to Employees Who May Have Arbitration Agreements...

Whether to give notices of a collective action under the Fair Labor Standards Act (FLSA) to employees who may join presents some nuanced and challenging questions for district courts. The court must “respect judicial...more

1/28/2020 / Arbitration , Arbitration Agreements , Collective Actions , Employment Litigation , Fair Labor Standards Act (FLSA)

Update on the TRO Issued in the Case Involving California’s AB 51 Anti-Arbitration Law

On Jan. 10, 2020 Chief District Judge Kimberly J. Mueller further defined the scope, issues and duration of the Temporary Restraining Order (TRO) she initially issued on Dec. 30, 2019....more

1/17/2020 / Arbitration , Arbitration Agreements , Federal Arbitration Act , Mandatory Arbitration Clauses , State Labor Laws , TRO

District Court Temporarily Enjoins Enforcement of California’s AB 51 Anti-Arbitration Provision

A federal judge has issued a temporary restraining order halting the enforcement of Assembly Bill 51, California’s latest attempt to prevent arbitration of claims brought under the California Fair Employment and Housing Act....more

12/31/2019 / Arbitration , Arbitration Agreements , Federal Arbitration Act , FEHA , Mandatory Arbitration Clauses

California Enacts Anti-Arbitration Legislation, but Will the FAA Limit Its Potential Impact? Not Entirely.

On Oct. 10, California Governor Gavin Newsom signed into law an attempt by California’s Legislature to limit arbitration of claims under California’s Fair Employment and Housing Act (“FEHA”). ...more

10/14/2019 / Arbitration , Arbitration Agreements , Federal Arbitration Act , FEHA , Labor Code , Preemption

Third Circuit Opinion Involving Uber Only Adds More Questions to the Dispute Over the Scope of the FAA Section 1 Residual Clause

Recent decisions have cast doubt on the enforcement of arbitration clauses in the context of the interstate transportation of goods, but will those limitations extend to the transportation of passengers? ...more

9/16/2019 / Arbitration , Federal Arbitration Act , Residual Clause , Uber

Ohio Supreme Court Addresses Waiver of the Right to Arbitrate in the Putative Class Action Context

In Gembarski v. PartsSource, Inc. (Slip Opinion No. 2019-Ohio-3231, decided Aug. 14, 2019), the Supreme Court of Ohio clarified the standards for waiver of the right to arbitrate in the class action context where only unnamed...more

8/20/2019 / Arbitration , Arbitration Agreements , Class Action , Class Certification , FRCP 23

The Fifth Circuit Agrees With Its Sister Circuits That Class Arbitrability Is a Gateway Issue for Courts, Not Arbitrators

In a predictable decision, the Fifth Circuit has held that the availability of class arbitration is a gateway issue for the courts to decide, absent “clear and unmistakable” language in the arbitration agreement to the...more

7/24/2019 / Arbitration , Arbitration Agreements , Class Action Arbitration Waivers , Class Arbitration , Employment Litigation , NLRA

NY Law Doesn’t Prevent Arbitration of Sexual Harassment Claims

Recent New York legislation in reaction to the #MeToo movement has sought to limit or foreclose arbitration of employment-related disputes. See N.Y. C.P.L.R. § 7515 (“§ 7515”) and its June 19, 2019, amendment, bill...more

7/2/2019 / Arbitration , Arbitration Agreements , Employer Liability Issues , Federal Arbitration Act , Preemption , Sexual Harassment , State Labor Laws

Can Delivery Drivers Be Compelled to Arbitrate After New Prime? New Jersey Appellate Courts Seem to Take Conflicting Positions

After New Prime v. Oliveira, 139 S. Ct. 532 (2019), many wondered if state arbitration law could be applied when transportation workers were found to be exempt from the Federal Arbitration Act (FAA) based on § 1. ...more

6/11/2019 / Arbitration Agreements , Delivery Drivers , Federal Arbitration Act , Motion to Compel , New Prime v Oliveira

Recent Decisions Don’t Provide Useful Guidance on Tests for the FAA Exemption of Transportation Workers

Sometimes being right is not a virtue, especially when it comes to the Federal Arbitration Act § 1 exemption. We predicted uncertainty after the New Prime v. Oliveira decision and got it....more

4/30/2019 / Arbitration Agreements , Employment Contract , Federal Arbitration Act , Independent Contractors , Motion to Compel

SCOTUS Reverses Ninth Circuit on Proper Bases for Class Arbitrations

The U.S. Supreme Court, in a 5-4 decision, ruled that arbitration agreements must provide a “contractual basis for concluding that the part[ies] agreed to [class arbitration].” ...more

4/25/2019 / Ambiguous , Appeals , Arbitration , Arbitration Agreements , Class Arbitration , Consent , Federal Arbitration Act , Federal v State Law Application , Jurisdiction , Lamps Plus Inc v Varela , Motion to Compel , Preemption , Reversal , SCOTUS

Kentucky Rejoins the Majority – New Law Permits Mandatory Arbitration Agreements

A Sept. 27, 2018, Kentucky Supreme Court ruling found that mandatory arbitration agreements conditioned on employment were not enforceable. See Northern Kentucky Area Development District v. Snyder, No. 2017-SC-000277-DG. ...more

3/29/2019 / Arbitration , Arbitration Agreements , Employment Litigation , Federal Arbitration Act , Mandatory Arbitration Clauses

Arbitration for Transportation Workers? The Anticipated Push To Expand the FAA Exemption

As we indicated in a January 17, 2019 blog article, the New Prime v. Oliveira, 139 S. Ct. 532 (2019), opinion was likely to lead to uncertainty in the transportation industry. ...more

3/13/2019 / Amazon , Arbitration Agreements , Delivery Drivers , Federal Arbitration Act , New Prime v Oliveira

Fifth Circuit Addresses Notices of Collective Action for Those Who Signed Arbitration Agreements Requiring Only Individual Claims

The intersection of Fair Labor Standards Act (FLSA) collective action procedures and employee arbitration agreements waiving aggregate actions has led to differing approaches among the district courts. ...more

2/26/2019 / Arbitration , Arbitration Agreements , Class Action , Fair Labor Standards Act (FLSA)

New Prime Decision Adds Uncertainty to Arbitration in the Transportation Industry

The U.S. Supreme Court’s decision in New Prime v. Oliveira, No. 17-340 (Jan. 15, 2019), has added uncertainty to arbitration agreements in the transportation industry by holding that the Federal Arbitration Act (FAA) § 1...more

1/17/2019 / Appeals , Arbitration Agreements , Commercial Truck Drivers , Employment Contract , Exceptions , Federal Arbitration Act , Independent Contractors , Motion to Compel , New Prime v Oliveira , Question of Arbitrability , Reaffirmation , SCOTUS

Supreme Court Decides First Arbitration Case on Its Docket – Henry Schein, Inc. v. Archer & White Sales, Inc.

As we noted in our Dec. 19, 2018, blog article, there were three arbitration cases involving the Federal Arbitration Act (FAA), all argued in October 2018, pending on the Court’s docket. Now, in a unanimous opinion written by...more

1/16/2019 / Appeals , Arbitration , Arbitration Agreements , Arbitrators , Contract Terms , Exceptions , Federal Arbitration Act , Henry Schein Inc v Archer and White Sales Inc , Judicial Review , Motion to Compel , Question of Arbitrability , Remand , SCOTUS , Vacated , Wholly Groundless Doctrine

What’s Ahead at the Supreme Court?

There are at least four cases now before the U.S. Supreme Court that may be of significant interest to employers. Three were argued in October 2018, and certiorari was granted in the last case on Dec. 10....more

12/20/2018 / Arbitration Agreements , Disability Benefits , Federal Arbitration Act , Kisor v Wilkie , Lamps Plus Inc v Varela , Motion to Compel , New Prime v Oliveira , SCOTUS

Fifth Circuit Holds That the Company in Class Action Waived Its Right to Arbitrate Because of Litigation Conduct

The standards for determining when a party waives its right to arbitrate through participation in litigation have never been uniform among the circuits or easily applied. The recent Fifth Circuit opinion in Forby v. One...more

12/5/2018 / Arbitration , Class Action , Consumer Fraud , Corporate Counsel , Credit Monitoring , Motion to Compel , Motion to Dismiss , Unjust Enrichment

Another Bill Aimed at Employee Arbitration Agreements – This Time to Nullify Epic Systems

On Oct. 30, 2018, Rep. Jerrold Nadler, D-N.Y., and Rep. Bobby Scott, D-Va., together with 58 Democratic cosponsors, introduced the Restoring Justice for Workers Act, H.R. 7109 H.R. 7109. ...more

11/6/2018 / Arbitration , Arbitration Agreements , Class Action Arbitration Waivers , Epic Systems Corp v Lewis , Federal Arbitration Act , NLRA

Yet Another Opinion Addresses the Availability of Class or Collective Arbitration and Whether It Is a ‘Gateway Issue’ for the...

We didn’t expect to be discussing class or collective arbitration issues so soon, but we have repeatedly underestimated the resilience of these aggregate arbitration questions. Hopefully, the upcoming Lamps Plus, Inc. opinion...more

10/25/2018 / Arbitration , Arbitration Agreements , Class Arbitration , Employment Litigation , Wage and Hour

John Lewis

BakerHostetler

Popular Topics by This Author

Latest Publications