August 15th 2022
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Harvard Law School's Pipeline Parity Project saw another success in its campaign to end forced arbitration in employment disputes when Sidley Austin, one of the United States' 10 largest law firms, announced that it would bow to pressure and eliminate arbitration...
On the cusp of an ideological majority for the first time in over half a century, the U.S. Supreme Court begins its new term today, again – like in 2016 – with an 8-Justice lineup. While the fate of the current nominee is uncertain, the Court is slated for what...
Responding to the #MeToo movement and the Supreme Court's decision in Epic Systems, the California State Senate passed a bill that would prohibit employers from requiring a mandatory arbitration provision or nondisclosure agreement as a condition of employment. Big...
On Tuesday, Washington governor Jay Inslee signed an executive order intended to mitigate the fallout from the Supreme Court’s recent decision in Epic Systems. In the order, the governor instructs state agencies to contract only with businesses who can demonstrate...
After the oral argument in Epic Systems Corp. v. Lewis, I wrote that the five Republican appointees on the Supreme Court would have to put their thumbs heavily on the scale for the employers to prevail. Sadly, it was no surprise that this is exactly what happened....
In September, we worried that the Trump Administration was using Epic Systems (aka Murphy Oil) to lay the groundwork for curtailing protection of concerted activity outside the union organizing and collective bargaining context. To our relief, Epic Systems does...
The Supreme Court holds this morning in Murphy Oil that class and collective action bars in arbitration agreements are enforceable under the Federal Arbitration Act (FAA) and are not incompatible with the NLRA. The majority opinion by Justice Gorsuch is notable...
At the end of February, the Supreme Court granted cert. in New Prime, Inc. v. Oliveira. In so doing, the Court added to the list of cases that examine how and to what extent the Federal Arbitration Act (FAA) applies in the employment context (see our coverage of...
Harvard University graduate students began voting Wednesday on whether to unionize, following the successful unionization efforts at Columbia University, New York University, and other schools. This is the second union election in a years-long effort to unionize...
After the recent slashing of the corporate tax rate, companies continue to announce bonuses for workers. Jet Blue (whose flight attendants filed for an NLRB election in December) and Southwest join the list. Yet the union representing Southwest's technical...
Tomorrow, the National Labor Relations Board will publish a Request for Information in the Federal Register, asking for public input regarding the Board’s 2014 "Quickie Election" Rule. The amendments, which took effect on April 14, 2015, allowed union organizing...
Last week the Supreme Court passed up an opportunity to resolve a hotly disputed aspect of employment arbitration law: Whether judges or arbitrators should decide whether class (or collective) arbitration is available when an arbitration agreement is silent on the subject. The Court’s denial of certiorari in Opalinski v. Robert Half International, Inc., 583 U.S. — (No. 16-1456) (Order List of October 30, 2017, p. 10) thus put a precipitous and somewhat unexpected end to a bit of suspense about this case over the last few months. While the arbitration spotlight is currently focused on the Court’s consideration of whether enforcement of class arbitration waivers violate the National Labor Relations Act, see, Epic Systems Corp. v Lewis, No. 16-285 (argued in tandem with Ernst & Young LLP v. Morris, No. 16-300 and N.L.R.B. v. Murphy Oil USA, No. 16-307 on October 2, 2017), lurking in the shadows is a corollary issue presented in Opalinski: What happens when an employment agreement specifying arbitration does not contain such a class action waiver? That is, if an agreement says nothing about class arbitration one way or the other, who decides whether class treatment is permissible? More precisely, is class treatment a procedural question for an arbitrator or is it a gateway arbitrability question for a judge to decide?