Labor & Employment Law

Reinstatement of employee held to be in excess of arbitrator's powers

Posted on January 07, 2009
A transit authority employee was discharged for allegedly assaulting a customer. An arbitrator determined that the employee had committed the assault, but reduced the penalty to reinstatement without back pay. The employer commenced proceedings pursuant to CPLR article 75, seeking to vacate the arbitrator?s reduction in penalty...

Unconscionability the Washington State way

Posted on September 01, 2008
Washington's approach to unconscionability is unusual because it is not necessary to establish both procedural unconscionability (e.g., disparate bargaining power, take-it-or-leave-it contract) and substantive unconscionability (a contract term that is one-sided or overly harsh)...

Spanish speaker bound by English agreement

Posted on August 29, 2008
Morales sued the employer, asserting various claims arising from his discharge from employment. The employer moved to compel arbitration, but the trial court denied the motion. The 3rd Circuit reversed. Morales v. Sun Constructers (3rd Cir 08/28/2008)...

California reviews award for legal error

Posted on August 29, 2008
It was no surprise when the US Supreme Court held that the Federal Arbitration Act (FAA) does not allow a court to review an arbitrator's award for legal error, even if the parties contracted to have that happen. The FAA has limited grounds for court review, and legal error is not one of them...

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Appeal order denying arbitration within 30 days

Posted on August 14, 2008
Garland Snider sued the employer, asserting claims for breach of contract and violation of state wage and hour laws. The employer petitioned to compel arbitration, but the petition was denied by the trial court. The matter proceeded to a jury trial, where Snider prevailed...

USERRA claims are subject to arbitration

Posted on August 13, 2008
The 6th Circuit has decided that claimed violations of the Uniformed Services Employment and Reemployment Rights Act (USERRA) are subject to arbitration. Landis v. Pinnacle Eye Care (6th Cir 08/11/2008) Timothy Landis sued the employer, asserting (among other things) a claim for violation of the Uniformed Services Employment and Reemployment Rights Act (USERRA)...

FMCS will change rules

Posted on August 13, 2008
FMCS - the Federal Mediation and Conciliation Service - plans to change some of its rules relating to arbitration services, and invites public comment on or before October 6, 2008. [Federal Register Notice]  In a nutshell, here are the changes: Increase the listing fee FMCS charges arbitrators - from $100 to $150...

Late filing divested arbitrator of jurisdiction

Posted on August 12, 2008
It has long been an axiom of arbitration law that it is for the arbitrator - not the court - to decide whether a union's grievance was filed on time. However, the arbitrator's decision on that question is still subject to some limited judicial review to decide whether the arbitrator's decision "draws its essence" from the collective bargaining agreement...

Antitrust and arbitration

Posted on April 26, 2008
Have banks conspired to force credit card holders to accept mandatory arbitration clauses, coupled with no-class-action provisions, in their cardholder agreements? That's the claim made by some cardholders against a bunch of banks in a lawsuit in federal court in New York...

Gentry: Cert denied

Posted on March 31, 2008
The US Supreme Court denied certiorari in Circuit City Stores, Inc. v. Gentry on March 31. (This case was Gentry v. Superior Court (Supreme Court of California 08/30/2007) (4-3 vote)). Robert Gentry brought a class action suit claiming that the employer had misclassified salaried customer service managers as exempt from the overtime provisions of the California Labor Code...

Hall Street: No expansion of FAA grounds for vacating award

Posted on March 27, 2008
The Federal Arbitration Act (FAA) contains specific grounds for a federal court to vacate or correct an arbitrator's award. None of the statutory grounds includes correcting the award if the arbitrator's conclusions of law were erroneous. In Hall Street Associates v...

Hall Street: Non-statutory grounds for review

Posted on March 27, 2008
Hall Street Associates v. Mattel [details] (US Supreme Court 03/25/2008) (6-3) held that "§§10 and 11 respectively provide the [Federal Arbitration Act's] exclusive grounds for expedited vacatur and modification" of an arbitrator's award. And some brave souls are asking "Do they really mean that? What about the various non-statutory grounds that courts seem to use for overturning arbitrators' awards, such as manifest disregard of the law, public policy, arbitrary and capricious, irrational?" Well, here comes the truth: "Public policy" is the easiest...

Supremes take another arbitration case

Posted on March 17, 2008
The US Supreme Court this morning granted certiorari in Vaden v. Discover Bank, et al. (Docket number 07-773). Briefs are available from LawMemo and SCOTUSblog. Oral arguments will be scheduled for the Fall of 2008. Discover Bank sued Betty Vaden in state court for nonpayment of her credit card balance...

Gentry at the US Supreme Court

Posted on March 15, 2008
Circuit City Stores has filed a petition for a writ of certiorari in Circuit City Stores, Inc. v. Gentry, known previously as Gentry v. Superior Court (California Supreme Court 08/30/2007) (4-3 vote) Briefs filed at the US Supreme Court are available at LawMemo and at SCOTUSblog...

ABA ADR Conference

Posted on March 11, 2008
The ABA Section of Dispute Resolution Presents The 10th Annual Spring Conference Pacific Currents: Sound Perspectives on ADR April 3-5, 2008Pacific Currents: Sound Perspectives on ADR is the premiere conference in the world for dispute resolution professionals and lawyers engaged in dispute resolution processes...

Preston v Ferrer: FAA preempts California statute

Posted on February 20, 2008
Preston v Ferrer (US Supreme Court, February 20, 2008). 8 to 1, US Supreme Court today holds that issues are to be decided by an arbitrator, not by the California Labor Commissioner. No surprises here. The official syllabus: A contract between respondent Ferrer, who appears on television as ?Judge Alex,? and petitioner Preston, an entertainment industry attorney, requires arbitration of ?any dispute ? relating to the [contract?s] terms ? or the breach, validity, or legality thereof ? in accordance with [American Arbitration Association (AAA)] rules...

Supreme Court: Can union waive individual's right to sue?

Posted on February 19, 2008
US Supreme Court will hear case on union's waiver of court forum for statutory claim. 14 Penn Plaza LLC v. Pyett (Certiorari granted February 19, 2008) [Details, briefs] When employees sued claiming age discrimination, the employer filed a motion to compel them to take the case to arbitration...

A new name

Posted on February 11, 2008
How exciting! A new name for this blog: LawMemo Arbitration Blog. (Was Ross' Arbitration Blog) It's all about branding. The brand is LawMemo. LawMemo is the name of the company, and the domain name. The words "Law Memo" are part of our three email products: Employment Law Memo NLRB Law Memo Arbitration Law Memo What could be more exciting than that?

How not to write an arbitration clause

Posted on February 04, 2008
Roberto Rodriguez sued his former employer, asserting state law claims for unpaid commissions. The employer moved to compel arbitration, but the trial court denied the motion. The Washington Court of Appeals affirmed, agreeing with the trial court that the arbitration agreement was inherently unfair and unenforceable...

No "manifest disregard" as to class "opt out" provision

Posted on February 04, 2008
An arbitrator's application of AAA's "opt-out" class certification provision (rather than FLSA's "opt-in" provision) didn't constitute "manifest disregard" of the law, says the 4th Circuit. Long John Silver's v. Cole (4th Cir 01/29/2008). Cole and her co-workers initiated class-wide arbitration proceedings against their employer pursuant to an arbitration agreement...

4th Birthday

Posted on January 24, 2008
Happy 4th Birthday to us.

Order vacating arbitration award reversed

Posted on January 06, 2008
The 6th Circuit applied its recent decision in Michigan Family Resources, Inc. v. Service Employees International Union, 475 F3d 746 (2007) which held that courts were without authority to overturn an arbitrator's award which was arguably construing or applying the contract and acting within the scope of his authority...

Arbitrator nixes mandatory flu shots for nurses

Posted on December 23, 2007
Virginia Mason Hospital implemented a mandatory flu immunization program requiring proof of flu vaccination as a "fitness for duty requirement" for all nurses. And for obvious reasons. Staff-to-patient transmission is prevalent in hospitals, and the hospital's previous voluntary immunization program resulted in only 55% of the staff being immunized...

Hall Street v Mattel: An FAA case? Or not?

Posted on December 01, 2007
It is better that I eat crow now, while it is young and tender. So let the feast begin. Up until now I have viewed Hall Street Associates v. Mattel [Details; all briefs] as an ordinary FAA case, raising the issue of whether courts must (or may) enforce a private arbitration agreement that purports to give a district court broader review powers than the FAA specifies...

Hall Street Associates v. Mattel: more briefs to be filed

Posted on November 16, 2007
The US Supreme Court on November 16 ordered supplemental briefing in Hall Street Associates v. Mattel Oral arguments were held November 7. The issue in this case is whether a federal court must (or may) enforce the parties' agreement that expands the scope of judicial review of an arbitration award beyond what is provided by the Federal Arbitration Act...

Acceptance by continuing to work

Posted on November 14, 2007
Lots of blog buzz about Seawright v. American General (6th Cir 11/13/2007), which held that Seawright accepted her employer's offer of an arbitration agreement by continuing to work. The case discusses some basics of contract law: offer, acceptance, consideration, unconscionability...

Justice Breyer: "The case of the century"

Posted on November 07, 2007
"The case of the century" - That's what Justice Breyer said about Hall Street Associates v. Mattel during today's oral argument. Click here for full transcript. At issue is whether a federal court must (or may) enforce an arbitration agreement that gives the court authority to review the arbitrator's award to see whether "the arbitrator's conclusions of law are erroneous...

Statute of limitations for vacating an award (ouch)

Posted on November 02, 2007
The Federal Arbitration Act has a three months statute of limitations for moving to vacate an award. This invites two questions, both of which were answered today in Webster v. A. T. Kearney, Inc (7th Cir 11/02/2007): When does the period begin? When does the period end? Webster took his age discrimination and breach of contract case to arbitration, and lost...

GENTRYfication of class action waivers

Posted on October 24, 2007
"Gentryfication" - A new word for a new legal theory. Or an old theory used in a new way. California has adopted a new, perhaps easier, way to attack class action waivers. The standard attack has been on the ground of unconscionability. The new attack is on the ground of public policy...

Hall Street: Contract vs. statute

Posted on October 22, 2007
One key feature of arbitration is that an arbitrator's award is "final." Courts do not review arbitration awards to be sure the arbitrator was correct in making fact-findings, or correct in interpreting a contract, or correct in applying the law. Federal Arbitration Act Section 10 specifies the grounds for vacating an award...

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