Arbitration Agreement Snafu

By Bill Wright A federal trial court in California rejected an employer’s attempt to compel arbitration over an employee claim; the employer didn’t keep its own policy exceptions in mind. In 2009, the employer’s job application provided that any significant change in the terms and conditions of employment had to be approved by the Director […]

No Arbitration for Masseuse

By Andy Volin The Tenth Circuit just ruled that an arbitration agreement between a massage student and her school was not enforceable, because it would not permit the effective vindication of the student’s statutory rights. Nesbitt v. FCNH, Inc., No. 14-1502 (10th Cir. Jan. 5, 2016). The dispute involved a massage student’s claim that, when […]

“Biggest Idiot” Meets Class Waivers

By John Alan Doran The “biggest idiot theory” (our term, not the NLRB’s) states that, when the NLRB reviews an employer’s policy to see whether the policy would “chill” an employee from exercising NLRA rights, the NLRB does so from the perspective of the biggest idiot on the planet, not the mythical “reasonable employee.” (See […]

SCOTUS Benchslaps Cali…Again

By John Alan Doran This morning, the U.S. Supreme Court struck down a California Court of Appeals decision invalidating class action arbitration waivers. DIRECTV, Inc. v. Imburgia, (No. 14-462 December 14, 2015). DIRECTV’s customer service contract contained a mandatory arbitration clause.  That clause also waived the customer’s right to pursue a class action in arbitration.  […]

Handbook Is No Arb. Agreement

By Lori Phillips In Lorenzo v. Prime Communications, L.P., No. 14-1727 (4th Cir. Nov. 24, 2015), Lorenzo sued her former employer, Prime Communications, L.P. (“Prime”), for minimum wage and overtime violations. Prime tried to compel arbitration based on an arbitration provision in the employee handbook. The court denied Prime’s motion to compel, because Lorenzo had […]

Court Order Trumps Board

By Bill Wright What happens when the NLRB says an arbitration agreement is illegal, but a court enforces the agreement anyway? Four plaintiffs recently found out. In Hobson et al. v. Murphy Oil USA, Inc., No. CV-10-S-1486-S (N. D. Ala. July 8, 2015), the plaintiffs brought a collective action, for themselves and others, seeking unpaid […]

NLRB Sticks To D.R. Horton

By Lori Phillips Recently in Chesapeake Energy Corp., 362 NLRB No. 80 (Apr. 30, 2015), the NLRB held fast to its ruling in D.R. Horton, Inc., 357 NLRB No. 184 (2012). The employer required its employees to sign an arbitration agreement as a condition of employment. The agreement required “binding arbitration to resolve all disputes” […]

A Court Abandons Horton

By Bill Wright In February 2013, we reported on a federal court in Idaho that followed the NLRB’s D.R. Horton decision and ruled that agreements to arbitrate all claims solely on an individual basis were unenforceable. (Click here to read the post.) Here’s the rest of the story. After failing to compel arbitration, the employer […]

Tactics Kill Arb Agreement

By Lori Phillips In Roe v. SFBSC Management, LLC, No. 14-cv-03616 (N.D. Cal. Mar. 2, 2015), a federal district court in California rejected a night club’s attempt to compel arbitration by a class of performers who claimed they were misclassified as independent contractors. The court rejected the terms of the arbitration agreement as “substantively unconscionable” […]

NLRB to Re-Hear Labor Arbs

By Bill Wright Another NLRB bombshell. The NLRB used to “defer” statutory issues to arbitration. For example, if an employer and union arbitrated the issue of an employee’s discharge for good cause, the NLRB would not then prosecute an unfair labor practice (“ULP”) charge over whether the discharge was because of protected concerted activity, unless the […]