Last week, the U.S. Seventh Circuit Court of Appeals struck a blow to employers that require their employees to waive their right to bring class and collective actions to remedy wage and hour violations, finding these waivers violate the National Labor Relations Act's right to engage in "concerted activities" to improve workplace conditions.
When an employee learns that he or she may have been treated illegally by an employer, one option used to be going to court with co-workers who were similarly harmed to resolve their grievances together in a class action. A person may have a few thousand dollars at stake in the dispute, while the cost of bringing a lawsuit would be many times that amount.
A federal district court judge in San Francisco issues a blockbuster opinion holding Uber's arbitration policy with its drivers unenforceable under California law. The court holds that the policy - imposed by way of a cell-phone clickbox screen - created a one-sided forum for resolution of legal disputes.
Arbitration is a common, employer imposed method for resolving employment conflicts without going to court. However, Outten & Golden Partner Wendi Lazar suggests that when an employee is forced by contract to arbitrate rather than sue, arbitration becomes a means for employers to suppress the rights their employees would be entitled to in court.
The Financial Industry Regulatory Authority (FINRA) announced on January 25, 2012 that it fined brokerage house Merrill Lynch, Pierce, Fenner & Smith $1 million for requiring employees to resolve disputes relating to "retention bonuses" in New York state courts. The FINRA rules require its member firms and their employees to arbitrate such disputes in FINRA arbitration.
In a recent decision, Judge Wood distinguishes Supreme Court precedent to find an arbitration agreement that did not provide for class arbitration invalid under Second Circuit precedent because it foreclosed the exercise of statutory rights. Reaffirming her initial decision, Judge Wood determined defendant's reliance on the intervening decision of AT&T Mobility LLC v. Concepcion ("Concepcion") in seeking reconsideration was misplaced.
In a recent arbitration decision, a panel of FINRA arbitrators awarded $3.25 million in damages, interest, and costs to a broker who had alleged defamation and other claims against his former employer. The decision (known as an "award") concluded the arbitration proceedings in the case of Gorter v. Questar Capital Corp, FINRA Case No. 08-03514 (award signed Jan. 13, 2012).
The SEC recently published a notice that the Financial Industry Regulatory Authority, Inc. ("FINRA") has proposed a rule change to its Code of Arbitration Procedure for Industry Disputes. The proposal would be a welcome change - the new rule would make collective actions ineligible for FINRA arbitration, just as class actions already are. With the rule change, employees who are registered with FINRA (e.g., stockbrokers, traders, and other employees working in securities businesses) will be able to file and participate in FLSA, ADEA, and EPA collective actions without the threat of being compelled to arbitrate their claims in FINRA's forum.