Labor & Employment Law

Court will not order consolidation of union's multi-unit grievance

Posted on March 08, 2011
UFCW v. MultiCare Health Sys (W.D. Wash 03/03/2011) is an interesting case. The union filed a grievance in response to the employer's change in its policy on paying employees who are furloughed due to infectious conditions. The union represents employees in eight bargaining units, and sought a court order to conduct a single arbitration for all units...

SOX ban on pre-dispute arbitration agreements is retroactive

Posted on March 01, 2011
Pezza v. Investors Capital (D Mass 03/01/2011): Pezza sued claiming retaliation in violation of the whistleblower provisions of the Sarbanes-Oxley Act. While the employer's motion to compel arbitration was under advisement, Congress enacted the Dodd-Frank Act which enacted a bar to pre-dispute arbitration agreements for whistleblower claims brought under the Sarbanes-Oxley Act...

Arbitration agreement cannot waive right to administrative wage hearing

Posted on February 24, 2011
The California Supreme Court held today [Sonic-Calabasas A Inc v. Moreno (California 02/24/2011) (4-3)] that an arbitration agreement cannot waive an employee's right to have an administrative hearing to resolve a claim for unpaid wages. Under California's unpaid wages statute, an employee can seek an administrative hearing which results in a nonbinding decision, followed by an appeal de novo to a trial court...

SCOTUS will decide arbitration waiver issue

Posted on February 22, 2011
Today the US Supreme Court granted certiorari in Stok & Associates v. Citibank. The issue, as presented in the petition for certiorari: Despite the prevalence of arbitration provisions, parties very frequently elect to waive their contractual right to arbitrate and instead seek to resolve their disputes in a court of law...

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NLRB deferral to arbitration: Changes coming

Posted on January 25, 2011
The NLRB's Acting General Counsel has announced that he will urge the National Labor Relations Board to change its framework for post-arbitral deferral. Memorandum GC 11-05, January 20, 2011 For a very long time the NLRB has had a policy of declining to take jurisdiction over an unfair labor practice charge when an arbitrator has already issued an award...

SCOTUS: Arbitrator, not court, decides whether arbitration agreement is unconscionable (5-4)

Posted on June 21, 2010
The US Supreme Court decided Rent-A-Center West v. Jackson (US Supreme Ct 06/21/2010) this morning. When he was hired, Jackson signed an agreement to arbitrate all future disputes. That agreement provided: "The Arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of this Agreement including, but not limited to any claim that all or any part of this Agreement is void or voidable...

AT&T Mobility LLC v. Concepcion: Cert granted

Posted on May 24, 2010
The US Supreme Court today granted certiorari in AT&T Mobility LLC v. Concepcion, which will test whether the Federal Arbitration Act preempts state unconscionability law. Plaintiffs brought a class action claim that a telephone company?s offer of a ?free? phone to anyone who signs up for its service is fraudulent to the extent the phone company charges the new subscriber sales tax on the retail value of each ?free? phone...

Imposing class arbitration on parties who have not agreed to it violates Federal Arbitration Act (5-3)

Posted on April 27, 2010
The US Supreme Court has decided Stolt-Nielsen v. AnimalFeeds (US Supreme Ct 04/27/2010) The parties in this case are parties to an international maritime contract that contains an arbitration clause. The contracts are silent as to whether arbitration is permissible on behalf of a class, and the parties submitted that issue to arbitration...

Rent-A-Center West v. Jackson: Details and briefs

Posted on April 19, 2010
On Monday, April 26, the US Supreme Court will hear oral arguments in Rent-A-Center West v. Jackson. Here is the question presented: Is the district court required in all cases to determine claims that an arbitration agreement subject to the Federal Arbitration Act ("FAA") is unconscionable, even when the parties to the contract have clearly and unmistakably assigned this "gateway" issue to the arbitrator for decision? Here are the briefs that have been filed: Brief for Petitioner Rent-A-Center, West, Inc...

Case-by-case determination of ability to pay arbitration fees and costs

Posted on March 31, 2010
Brady v. The Williams Capital Group (New York 03/25/2010) Brady brought an Article 78 proceeding to compel the employer to pay the arbitrator's fee with respect to her Title VII wrongful discharge claim based on sex and race discrimination. The trial court dismissed the petition holding the fee-sharing provision of the arbitration agreement, rather than the American Arbitration Association's (AAA) "employer-pays" rule, governed...

Supreme Court fast-tracks arbitration case

Posted on January 19, 2010
The US Supreme Court has placed Rent-A-Center West v. Jackson on a "fast track," meaning that briefing will be expedited so the Court can hear the case this term - probably in April. Petitioner's brief is due February 25. Respondent's brief is due March 25...

Does arbitrator decide whether arbitration agreement is unconscionable?

Posted on January 18, 2010
The US Supreme Court has agreed to hear another employment arbitration case. The issue is whether it is for the court, or an arbitrator, to decide whether agreement to arbitrate is unconscionable. Jackson sued under 42 USC Section 1981, claiming race discrimination and retaliation...

US Supreme Ct argument on class action arbitration

Posted on September 28, 2009
The US Supreme Court announced today the schedule for oral arguments in Stolt-Nielsen S.A., et al. v. AnimalFeeds International Corp. - December 9 at 10:00 a.m. Eastern time. The parties in this case are parties to international maritime contracts that contain arbitration clauses...

Class action suit against National Arbitration Forum

Posted on September 17, 2009
A class action suit has been filed against National Arbitration Forum. Text of complaint: Magnone v. Accretive LLC, United States District Court, Central District of California A press release from the law firm filing the complaint: New York, NY ? September 15, 2009 ? The law firm of Milberg LLP has filed a class action lawsuit in the United States District Court for the Central District of California on behalf of all persons who used NAF's arbitration services during the period from June 1, 2006 to the present, inclusive (the ?Class Period?)...

Federal Service Impasses Panel appointments

Posted on September 16, 2009
The President has named seven highly-qualified individuals to the Federal Service Impasses Panel ? Federal Labor Relations Authority: Mary Jacksteit, Chair, Federal Service Impasses Panel ? Federal Labor Relations Authority Mary Jacksteit has over 20 years of experience in mediation, facilitation and negotiation working for non-profit organizations, government agencies and community organizations...

AAA confirms: No more consumer debt arbitration

Posted on July 23, 2009
We reported yesterday that the American Arbitration Association (AAA) announced that it will stop administering consumer debt collection arbitrations. Here is the AAA press release: Contact: Wayne Kessler, Vice President, Corporate Communications American Arbitration Association (212) 716-3975 kesslerw@adr...

What? AAA stops consumer debt collection arbitration

Posted on July 22, 2009
The American Arbitration Association (AAA) announced yesterday that it will stop administering consumer debt collection arbitrations. The Wall Street Journal quotes an unnamed AAA official as saying that AAA will stop taking these cases "until some standards or safeguards are established...

National Arbitration Forum ends consumer arbitration business

Posted on July 20, 2009
National Arbitration Forum (NAF) is famous for providing arbitration services for disputes between consumers and credit card companies. NAF announced yesterday that it will "voluntarily cease to administer consumer arbitration disputes as of Friday, July 24, 2009...

Arbitration or ?Arbitrary?: The Misuse of Arbitration to Collect Consumer Debts

Posted on July 20, 2009
A House subcommittee hearing on July 22 will focus on business-consumer arbitrations relating to to debt collection.  The title of the hearing gives you an easy way to predict the outcome: ?Arbitration or ?Arbitrary?: The Misuse of Arbitration to Collect Consumer Debts? Text of the House press release: For Immediate Release: Contact: Nathan White (202)225-5871   Hearing: ?Arbitration or ?Arbitrary?: The Misuse of Arbitration to Collect Consumer Debts? Date: July 22, 2009, 2:00 p...

SCOTUS takes another arbitration case

Posted on June 21, 2009
The US Supreme Court has announced that it will decide whether the Federal Arbitration Act (FAA) permits arbitrators to impose class arbitration on parties whose arbitration clauses are silent on that issue. The case: Stolt-Nielsen S.A. v. AnimalFeeds International (certiorari granted 06/15/2009) [Details, Briefs] The parties in this case are parties to international maritime contracts that contain arbitration clauses...

CBA arbitration clause can waive individual right to litigate statutory civil rights claim

Posted on April 02, 2009
The US Supreme Court held today (5-4) that a provision in a collective bargaining agreement that clearly and unmistakably requires union members to arbitrate ADEA claims is enforceable as a matter of federal law. 14 Penn Plaza v. Pyett (US Supreme Court 04/01/2009) The relevant collective bargaining agreement requires union members to submit all claims of employment discrimination to binding arbitration under the CBA?s grievance and dispute resolution procedures...

Bill stuffer cannot add an arbitration clause

Posted on March 19, 2009
When Santana Kortum-Managhan signed up for a credit card with the Herbergers department store, the agreement did not include an arbitration clause. However, it did contain a provision purporting to allow Herbergers to unilaterally change the agreement as it saw fit and specifying that a cardholder?s continued use of their Herbergers? credit card or other services constituted agreement to Herbergers? unilateral change in terms...

Arbitrator's manifest disregard of the law - a dying doctrine

Posted on March 17, 2009
Scenario: An individual employee and her employer agree to arbitrate the employee's claim against the employer. Perhaps Title VII, ADA, ADEA, whatever. They go to arbitration, and the arbitrator makes a decision. The loser reads the decision and sees a clear error in legal reasoning...

The Unconscionability Game: Strategic Judging and the Evolution of Federal Arbitration Law

Posted on March 11, 2009
Here is an interesting article by Professor Aaron-Andrew P. Bruhl at the University of Houston Law Center: The Unconscionability Game: Strategic Judging and the Evolution of Federal Arbitration Law, 83 New York University Law Review 1420 (2008). [PDF, 71 pages] We are seeing a lot of court cases in which individual employees resist having their claims sent to arbitration...

Vaden v Discover Bank: Federal courts "look through" arbitration petition to determine jurisdiction

Posted on March 09, 2009
The US Supreme Court has decided Vaden v Discover Bank (03/09/2009). [Details] [Full text of opinions] This was a unanimous decision on one point, and a 5-4 split decision on another point. Facts: Discover Bank sued Vaden in state court for nonpayment of her credit card balance...

Jurisdiction over non-signatory's appeal from an order denying a stay pending arbitration

Posted on March 03, 2009

Certiorari granted in Union Pacific v. Brotherhood of Locomotive Engineers

Posted on February 23, 2009
Five employees of the Union Pacific Railroad filed claims through their Union (the Brotherhood of Locomotive Engineers and Trainmen) contesting a discharge or discipline imposed by the Railroad. Rather than resolving the dispute over the propriety of the discipline, the National Railroad Adjustment Board concluded that the Union had failed to submit conclusive evidence that the parties had held a conference to attempt to resolve the dispute - a procedural prerequisite to arbitration - and thus the Board determined that it was required to dismiss the claim for lack of jurisdiction...

Justice Ginsburg nixes a stay of decision allowing class action arbitration

Posted on February 19, 2009
Today US Supreme Court Justice Ginsburg denied an application to stay a 2nd Circuit ruling that allows a class action arbitration. [Application for stay] In Stolt-Nielsen SA, et al., v. AnimalFeeds International (2nd Circuit 11/04/2008) the court was handling an appeal from a district court decision vacating an arbitration award...

Opaque "Make whole" award unenforceable, court remands to arbitrator for resolution

Posted on January 18, 2009
Due to budget cuts at the City of Oakdale, Kimberly Mossman lost her job. She claimed she had bumping rights under the City's personnel rules, and the parties agreed to arbitrate the dispute. An arbitrator decided that the City violated its own personnel rules...

LawMemo Arbitration Blog celebrates its fourth birthday

Posted on January 15, 2009
This week the LawMemo Arbitration Blog celebrates its fourth birthday.To each of you who reads this blog from time to time, you have my thanks. Writing entries for the blog has been a worthwhile experience for me. It has, like all public writing, forced me to be as clear as possible about my own thinking...

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