As we have previously reported, in early 2022, Congress passed and President Biden signed into law the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (EFAA), a law that bans mandatory arbitration of certain sexual assault or sexual harassment claims. Since its enactment, we have tracked some of the procedural challenges … Continue Reading
Latest California court decision is another example of judicial hostility to employment arbitration agreements. California employers and their employees frequently agree to resolve disputes through binding private arbitration, rather than the more time-consuming and costly process of litigating claims in court. However, to require arbitration, California employers are required to pay all fees unique to … Continue Reading
We previously reported on the enactment of the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (“EFAA”), a law that amended the Federal Arbitration Act (“FAA”) to preclude mandatory arbitration of sexual harassment and sexual assault cases. After the EFAA, employers utilizing mandatory arbitration programs must carve out sexual harassment and … Continue Reading
Now that we’re almost half-way through 2023, it’s time again to review the developments in state and local labor and employment laws. State legislatures and city councils continue to be very busy making new laws and amending existing laws. In fact, due to the large number of updates, we are splitting our post into two parts. … Continue Reading
California employers enthusiastically received the decision by the United States Supreme Court in Viking River Cruises v. Moriana, 142 S. Ct. 1906 (2022). That case held the Federal Arbitration Act allows employers to compel employees to arbitrate the individual part of their claim under the California Labor Code Private Attorneys General Act (“PAGA”). Some employers hoped … Continue Reading
In yet another chapter of the saga involving California and its treatment of employment arbitration agreements, a Court of Appeals recently issued two decisions examining the state’s legal standard for determining unconscionable arbitration clauses. Fuentes v. Empire Nissan, Inc., — Cal. Rptr. 3d. —, No. B314490, April 21, 2023, 2023 WL 3029968 (Apr. 21, 2023) … Continue Reading
The U.S. Court of Appeals for the Ninth Circuit struck down the California Legislature’s latest attempt in a prolonged effort to limit employers’ ability to make arbitration of all disputes a condition of employment. In an opinion issued on February 15, 2023, the Ninth Circuit ruled that the law, Assembly Bill 51, is preempted by … Continue Reading
Earlier this year, we reported that Congress amended the Federal Arbitration Act to preclude compulsory binding arbitration of sexual assault and sexual harassment claims. This past week, Congress went a step further, passing the Speak Out Act, S. 4524, which is aimed at prohibiting prospective, pre-dispute non-disclosure and non-disparagement agreements that prevent employees from discussing … Continue Reading
Last Wednesday, the U.S. Supreme Court waded into the complicated and controversial waters of California’s Labor Code Private Attorneys General Act (“PAGA”). At issue was whether pre-dispute arbitration agreements between employers and employees could be enforced to compel PAGA claims into arbitration – California courts had said no. At stake is a huge loophole which … Continue Reading
On February 11, 2022, we reported on Congress’ enactment of legislation barring the use of mandatory arbitration provisions in cases of sexual assault or sexual harassment. On March 3, 2022, President Biden signed the bill into law, as expected, making it illegal to compel an employee to arbitrate a claim of sexual assault or sexual … Continue Reading
On February 7, 2022, the U.S. House of Representatives passed, and on February 10, the U.S. Senate approved, a bill (the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (Act)) that would amend the Federal Arbitration Act (FAA) so as to invalidate clauses in employment agreements requiring employees to arbitrate claims of sexual … Continue Reading
In October 2019, California enacted a new law, AB 51, that on its face prohibits mandatory arbitration clauses in employment contracts. As expected, the law was immediately challenged in federal court. In the latest installment of the law’s journey through the courts, a split Ninth Circuit panel vacated a 2020 preliminary injunction that had forestalled … Continue Reading
From our Capital Thinking blog, our public policy colleague Stacy Swanson shares the latest federal employment law developments in in the legislative and executive branches during the week of July 26, 2021. *** This is a weekly post spotlighting labor topics in focus by the US legislative and executive branches during the previous week. In this issue, … Continue Reading
The National Labor Relations Board continues to clarify and update employers’ obligations in key areas. As discussed below, one recent decision clarifies when employers may enter into arbitration agreements that require employees to keep the proceedings confidential. Another recent decision rescinded a rule issued by the Obama-era NLRB and clarified, for employers who are negotiating … Continue Reading
On April 16, 2020, a three-judge panel of the Court of Appeals for the First District Court of Texas held that an employer could compel a former employee to arbitrate her wrongful termination case, even though it had not signed the arbitration agreement, because the evidence demonstrated that the employer intended to be bound by … Continue Reading
January 10, 2020 Update to AB 5 Challenges Trucking Industry: On Wednesday, January 8, 2020, a California state court ruled that AB 5 does not apply to the trucking industry because the state statute is preempted by federal law. This state court ruling lays a solid foundation for the federal court hearing on the trucking industry’s … Continue Reading
On December 17, 2019, the U.S. Equal Employment Opportunity Commission (“EEOC”) rescinded its 22-year-old policy statement disapproving of mandatory employment arbitration agreements for workplace bias claims. The agency’s 2-1 decision to retract this policy was in direct response to numerous U.S. Supreme Court rulings that support the use of such agreements. … Continue Reading
California Governor Gavin Newsom just signed a new batch of worker-friendly laws sponsored by Democrats in the California Assembly and Senate. These laws cover a range of topics from arbitration agreements to workplace safety. AB 51 will garner particular attention because not only does it substantially prohibit arbitration agreements, it criminalizes them. The new law … Continue Reading
Our colleagues Colter Paulson and Justin DiCharia at the Sixth Circuit Appellate Blog (which covers, as you may have guessed, developments in the U.S. Court of Appeals for the Sixth Circuit) authored the post below discussing the Sixth Circuit’s recent decision in a case in which the Court was tasked with deciding whether an employer … Continue Reading
If you’ve been following our blog, you already know that the topic of employer-mandated arbitration agreements has been a hot issue in recent years for government agencies and in the state and federal courts. Most notably, in May of last year, the United States Supreme Court issued its highly-anticipated decision in Epic Systems v. Lewis, … Continue Reading
The Court’s ruling in Lamps Plus, Inc., et al. v. Varela is the latest in the Court’s ongoing pro-employer, pro-arbitration jurisprudence As we first reported here, the United States Supreme Court’s docket this term includes three significant cases interpreting various aspects of the Federal Arbitration Act (“FAA”). Earlier this year, the Court ruled in the … Continue Reading
On January 15, 2019, the United States Supreme Court held in New Prime Inc. v. Oliveira that a trucking company could not compel its drivers, which it classified as independent contractors, to arbitrate their wage and hour claims against the company because Congress intended to exempt all interstate transportation workers from the Federal Arbitration Act … Continue Reading
As the Supreme Court’s October 2018 term opened, we wrote about three significant cases on its docket involving arbitration, each of which are likely to have an impact on the arbitration of employment-related claims. The Court issued its decision in the first of those cases on January 8, 2019. In his first opinion since joining … Continue Reading
The National Labor Relations Board recently issued more good news for unionized employers. In a guidance memorandum last week, the Board’s General Counsel announced an updated approach that will help employers avoid litigating unfair labor practice charges filed by unions or union-represented employees who have filed grievances regarding the same underlying dispute.… Continue Reading
