Category Archives: Arbitration

Can civil rights agencies help employees beat arbitration clauses?

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If confirmed, will Washington Nationals superfan Brett Kavanaugh just call balls and strikes when it comes to workplace justice issues?

The Lincoln Commission on Human Rights (LCHR) entered an award last month of $175,000 on behalf of a man who they found was discriminated against based on nationality and age.

While a six-figure judgment in favor of an employee in Lincoln is newsworthy in and of itself, the procedural back story of the case should be just as interesting to lawyers and observers of the legal system in light of recent Supreme Court decisions.

A federal judge overruled the employer’s motion to compel arbitration in the case. In a memorandum recommending the motion to compel arbitration be overruled a federal magistrate cited to the 2002 Supreme Court case, EEOC v. The Waffle House to hold that the Lincoln Commission on Human Rights was not a party to arbitration agreement and was free to pursue relief on behalf of the employee. The memorandum cited Iowa and Massachusetts cases applying Waffle House to state anti-discrimination agencies to find it applicable to the LCHR.

The ability of employees to use civil rights agencies as an end run around arbitration clauses, has taken new importance in the light of the Supreme Court’s recent Epic decision was which provided even more ability for employers to enforce arbitration agreements.

But there are some potential barriers for employees who wish to have an anti-discrimination agency pursue a discrimination claim on their behalf.

The most practical barrier is the lack of resources of civil rights agencies. In Nebraska, an employee has to wait several months before an investigator is assigned to their claim. This means that evidence gets spoiled and overworked investigators may not be as willing to pursue a case because of workload concerns. Without good evidence an agency is not going to pursue a claim on behalf of an employee in the public hearing process.

The inadequate funding of administrative agencies stems from a general hostility that many conservatives have towards the so-called “administrative state” or executive agencies that generally regulate the economy. (These same folks are deferential to executive agencies that comprise the national security state and law enforcement) This hostility is also evidenced in judicial skepticism of administrative agencies. This skepticism was on display from the Supreme Court in the Masterpiece Cakeshop decision. In Masterpiece the court found that comments made by a state human rights commissioner were sufficient evidence of bias to overturn a decision finding a business owner who refused to bake a cake for a gay wedding had committed illegal discrimination. I would expect more of that heightened scrutiny of decisions made by civil rights agencies in the future.

Finally, Waffle House may not remain controlling law. Waffle House was decided by a relatively narrow 6-3 decision with Justice Clarence Thomas writing the dissenting opinion. Legal journalist Ian Millhiser has deemed Thomas to be the most influential justice  because of his long record of dissenting and concurring opinions that are increasingly being adopted as law due to changes in the composition of the court.

Since Waffle House was decided in 2002, the Supreme Court has added Chief Justice John Roberts and Associate Justices Neil Gorsuch and Samuel Alito. Gorsuch is noted for his particular hostility to administrative agencies.  Supreme Court nominee and DC Circuit Court Judge Brett Kavanaugh’s views on administrative agencies allegedly aren’t as strident  as those of his fellow Georgetown Prep alum, Neil Gorsuch. But an employer looking to overturn the Waffle House decision may find a friendly audience with a five-justice majority comprising Justices Roberts, Thomas, Alito, Gorsuch and Kavanaugh.

The offices of Rehm, Bennett, Moore & Rehm, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

This entry was posted in Arbitration, civil rights, Supreme Court and tagged , , , , .

A truly Epic failure for workers

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He just turned 50 last year…

Free speech in the workplace has been discussed heatedly in the wake of the cancellation of “Roseanne”and a new rule prohibiting NFL players from kneeling during the national anthem. Parties on both sides in the culutrue war have argued that employees don’t have freedom of the speech on the job. While that is generally true, the National Labor Relations Act gives employees some rights of speech and associationon the job. But a recent Supreme Court case could have paired back those rights.

In Epic Systems v. Lewis the United States Supreme court held in a 5-4 decision that neither the National Labor Relations Act  nor the savings clause of the Federal Arbitration Act  prevents enforcement of arbitration clauses that preclude class or collective actions against employers by their employees.

As many commentators and the dissent pointed out, the Epic decision will make it more difficult for workers to band together to address wage and hour violations. Individually, even with attorney fees available, it is not economical for employees to pursue individual cases of wage theft if those individual cases amount to a relatively small amount. An example of such a case were the so-called “donning and doffing” cases pursued against various meat packing plants in the Midwest.

Employers have won some major victories in the area of wage and hour law this Supreme Court term. Epic follows on the heels of a decision making it easier for employers to prove they are exempt from the overtime provisions of the Fair Labor Standards Act

But Epic could impact labor and employment law beyond just wage and hour law. Here are a few ways Epic could impact more than just wage and hour law. This list is not inclusive and Epic is probably worth more discussion, but I wanted to discuss the broader implications of this case and bring up lesser discussed but important implications of this case.

What is a protected concerted activity?

The National Labor Relations Act protects protected concerted activity for the mutual aid of co-workers that goes to the terms and conditions of employment. The employees argued that participating in a collective action case under the Fair Labor Standards Act. Justice Neil Gorsuch, writing for the five Justice majority, disagreed. Gorsuch wrote that the NLRA only covered activities that employees do for themselves, not class action litigation. What concerned me more, was Gorsuch’s  use of a “canon”of statutory construction to hold that seemingly broad language in the NLRA about it employees being able to engage in collective activity for “mutual aid and protection” only applied to forming labor unions and other activities related to formal collective bargaining.

This conclusion concerned me because I have long advocated for non-unionized employees to engage in collective self-help on the job to address issues like bullying  or even accommodation of a disability.  But, as the dissent points out, association rights on the job are also protected by the Norris-LaGuardia Act (NLGA) NLGA expressly provides for a right to self-organization among employees. Though the Epic court rejected NLGA as a basis for overcoming an arbitration clause, it’s broader language could still be the basis for workplace speech and assocation rights than a paired down NLRA.

That Norris-LaGuardia would serve as backstop for employee association rights would assume the Roberts/Gorsuch court is merely following some rules of statutory construction rather than imposing their own economic preferences into the law. That might not be a fair assumption. The Federal Arbitration Act explicitly excludes employment contracts from coverage. In 2001, the Supreme Court limited that exclusion from workers in the transportation industry.  Epic would appear to further limit that exclusion in contradiction to plain and clear statutory language to the contrary.

 

Can Epic be made to benefit workers?

Epic may benefit some employees. One impetus behind using arbitration clauses to prevent class action claims is to defeat class action claims on retirement plans under ERISA. However ERISA also governs short-term and long- term disability policies. Currently, short-term and  long-term disability policies very difficult to win because courts defer to insurers on how the plans are interpreted. Some employee-benefit attorneys believe that employees will have a better chance of disability claims in arbitration.  Union-side labor lawyer, Moshe Marvit has also speculated that Epic might make it easier for employees to form unions.

Many management-side attorneys are also skeptical of arbitration  which could also prevent employers from adopting arbitration clauses.

Constitutional perspectives

So how is it that the Supreme Court can ignore seemingly plain language about the Federal Arbitration Act not applying to employment disputes? The Circuit City decision from 2001, provides one clue. In Circuit City the Supreme Court used a narrow interpretation of interstate commerce to hold that the FAA only applies to transportation employees. This holding is consistent with other holdings from the Rehnquist and Roberts courts that limit that power of the federal government to regulate through the commerce clause. (12)

Though Epic doesn’t discuss state police powers under the 10th Amendment much of the case law relied upon in Epic has to do with how the FAA pre-empts state laws preventing arbitration in certain cases. Essentially the so-called “contracts clause” which prevents laws that impair the obligation of contract.  This includes state laws enacted under 10th Amendment police powers. The Supreme Court took up a contracts clause case, Sveen v. Melin, this term.  That case could also have implications in the world of employment law depending on the language of the decision and any possible concurring opinions from the likes of Justices Gorsuch, Alito or Thomas.

The offices of Rehm, Bennett, Moore & Rehm, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

This entry was posted in Arbitration, NLGA, NLRA, Supreme Court, Wage and Hour and tagged , , , , .

How US Business Routinely Steals Your Legal Rights

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Today’s post comes from guest author Jay Causey from Causey Law Firm in Seattle. Mr. Causey, as a respected plaintiff’s attorney whom I have known for many years, is a strong advocate for consumers. He writes about how the American Association of Justice (a group to which I also belong) is encouraging consumers to know how arbitration limits the ability to get just compensation. This project also includes a component where people can report their experiences with arbitration, which adds to the general knowledge and AAJ’s research on the subject. Nebraska has limits on the kinds of disputes that are subject to binding arbitration. Our constitution barred binding arbitration of any kind until 1996 when a big-business-led group got the voters to approve it.

     You’ve just bought a new car, or signed an employment agreement, or engaged an investment firm to act for you, or made substantial charges on your credit card, or even just bought a Starbucks card.  Now something’s gone wrong, and you’re looking for relief, maybe contemplating a lawsuit.

     Unfortunately, you can probably forget any real legal remedy because chances are you’ve agreed to some fine print in the transaction that forces you into binding arbitration of any claim you have. For years the US Chamber of Commerce has been working behind the scenes to ensure most consumers lose access to the courts through these stealth provisions that hide in most contracts. The Chamber recently convened its annual summit for its Institute for Legal Reform, whose primary goal is to find ways that corporations can eliminate the rights of consumers, small businesses and employees to hold them accountable in court.

     The American Association for Justice (AAJ) calls the Chamber’s efforts “Corporate America’s Trojan Horse” which substitutes big businesses owned dispute resolution mill for the real machinery of justice in the courts. Most Americans are unaware of the some half billion arbitration provisions in transactions they have unwillingly consented to. Forced arbitration by arbitrators selected by big business, not bound by law, and making decisions not subject to any meaningful judicial review, has substantially altered the civil justice system of this country, and what’s left of your legal remedies.

 

For the full report on this go to: License to Steal: How the US Chamber of Commerce Forced Arbitration on America.

 

The offices of Rehm, Bennett, Moore & Rehm, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

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