Backpack wars

Image from Jon’s blog

Image from Jon’s blog

Cleveland employment lawyer Jon Hyman tells a bizarre story of his attempt to get to a mediation being held at the Ohio Civil Rights Commission. He had his laptop and all his papers in a backpack, and backpacks were not allowed into the Commission's building.

No metal detectors or pat-downs or other security – just a rule against backpacks.

Solution? Put the backpack into a shopping bag and carry it in that way?

Dumb? Sure. But it all made sense to the "security" folks.

For the whole story, including a mediator's contribution: What's is the dumbest workplace policy you've ever encountered?

Is Uber next? US Supreme Court case could be a game changer

New Prime v. Oliveira (US Supreme Ct 01/15/2019) [PDF] held that an interstate truck driver does not have to arbitrate his wage and hour claim – even though he signed an arbitration agreement.

This could have a big effect on lawsuits between Uber and their drivers. It probably turns on whether the drivers are IN interstate commerce.



Emailed click box did not suffice to show assent to employer's arbitration agreement.

We live in a digital age. What must an employer do to obtain digital agreement to its arbitration policy? Here is one case that gives one answer.

The New Jersey Appellate Division reversed the trial court's order compelling arbitration of a claim of religion discrimination. The court applied Leodori v. CIGNA Corp., 175 N.J. 293, 303 (2003) to find that there had not been an "explicit, affirmative agreement that unmistakably reflects the employee's assent." Skuse v. Pfizer (New Jersey Ct App 01/16/2018) [PDF].

The employer emailed to its workforce what it called a "training module" which described the company's mandatory arbitration policy. There was a link to the full text of the policy. In the module, employees simply were asked to "acknowledge" it with the click of an electronic button. The module declared that if an employee did not click the acknowledgement, but continued to work for the company for sixty or more days, the employee would be "deemed" to be bound by the arbitration policy.

The court held that the employee "never expressed in written or electronic form her explicit and unmistakable voluntary agreement to forego the court system and submit her discrimination claims against her former employer and its officials to binding arbitration." She clicked a box to indicate that she acknowledged receipt of the arbitration agreement, but nothing indicated she agreed to it. Compliance with the Leodori case requires that the click box contain the word "agree" or "agreement."

The court rejected the employer's argument that the employee was "deemed" to be bound by the arbitration policy because she continued to work for more than sixty days after receiving the arbitration agreement. "Such a proclamation of 'consent by default' is legally insufficient, however, to satisfy the requirements of explicit and unmistakable employee assent prescribed by Leodori."

SCOTUS: Interstate trucking independent contractors are exempt from the Federal Arbitration Act

Some pundits were surprised that the Court would issue a "pro-worker," "anti-arbitration" decision, failing to understand that the Justices all do their best to be faithful to the words Congress puts into its statutes.

Dominic Oliveira is an interstate truck driver whose contract with New Prime designates him as an independent contractor. The contract contains a mandatory arbitration provision and contains a "delegation clause," giving the arbitrator authority to decide threshold questions of arbitrability. Oliveira filed a class action claiming that New Prime failed to pay statutory minimum wage. The trial court denied New Prime's motion to compel arbitration; the 1st Circuit affirmed. The US Supreme Court affirmed unanimously. New Prime v. Oliveira (US Supreme Ct 01/15/2019) http://case.lawmemo.com/us/Oliveira.pdf

The Federal Arbitration Act (FAA) directs courts to compel arbitration, but §1 says that "nothing" in the Act "shall apply" to "contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce."

The Supreme Court held that the trial court – not the arbitrator – must first decide whether FAA §1 excludes Oliveira. This is because the contract's delegation clause (which is merely a specialized type of arbitration agreement) can be enforced only if the FAA applies in the first place.

The Supreme Court also held that FAA §1 excludes Oliveira. The FAA's term "contract of employment" refers to any agreement to perform work. At the time of the FAA's adoption in 1925, the phrase "contract of employment" was not a term of art, and dictionaries tended to treat "employment" more or less as a synonym for "work." Contemporaneous legal authorities provide no evidence that a "contract of employment" necessarily signaled a formal employer-employee relationship.

Cert granted on whether Title VII exhaustion requirement is jurisdictional

The US Supreme Court has granted certiorari to decide whether Title VII’s administrative exhaustion requirement is a jurisdictional prerequisite to suit, as three Circuits have held, or a waivable claim processing rule, as eight Circuits have held. Title VII requires plaintiffs to exhaust claims of employment discrimination with the EEOC before filing suit in federal court. Fort Bend County v. Davis (US Supreme Ct cert granted 01/11/2019) [Order].

The 4th, 9th, and 11th Circuits hold that exhaustion is jurisdictional, so courts lack subject matter jurisdiction over claims that were never presented to the EEOC. The 1st, 2nd, 3rd, 5th, 6th, 7th, 10th, and DC Circuits treat failure to exhaust as a claim processing rule that is subject to waiver, forfeiture, and other equitable defenses. The Department of Justice is on record as describing Title VII’s exhaustion requirement as jurisdictional, and the EEOC has taken the position that it is not jurisdictional.

The Court will review the 5th Circuit's judgment in Davis v. Fort Bend County (5th Cir 06/20/2018) [PDF], which held that the defendant forfeited its exhaustion argument by not raising it in a timely manner before the district court.

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