A blog for employment lawyers, human resources professionals, and union representatives.
August 18, 2005
Ross' Employment Law Blog: Try it
I invite you to visit my other blog, Ross' Employment Law Blog, where I discuss the meat and potatoes of employment law and labor law: Title VII, ADA, ADEA, FLSA, NLRA, employment discrimination, retaliation, and on and on. Recent entries:
- Work Law Blogs: Step 2
- EEOC-McDonald's mediation agreement
- Arbitration Law Memo
- Substantial limitation on walking
- Fire that one and get "somebody hot"
- Cert petition on post-termination hearing
- Employment Law Memo
- NLRB Law Memo
- Off-payroll employees excluded from ERISA plan
- State secrets trump Title VII
- Work Law Blogs
- Diabetic was a direct threat to safety
- Seniority can't control appointments
- "Reverse" age discrimination unlawful in Minnesota
- Jottings By An Employer's Lawyer
Motion to arbitrate delayed, denied
I don't know why a defense lawyer would wait 10 months before filing a motion to compel arbitration. Suit filed July 11, 2004. Motion filed May 19, 2005.
After some employees (who had signed arbitration agreements) sued claiming FLSA violations, the employer
- filed answers
- attended a scheduling conference
- filed amended answers
- engaged in written discovery and depositions
- participated in mediation
- filed counterclaims against two plaintiffs
- attended a pre-trial conference
And then a motion to compel arbitration. More than 10 months after suit was filed.
The trial judge held that the employer waived its right to compel arbitration. Robinson v. Food Service of Belton (D. Kansas 07/11/2005).
The employer argued that it set up the arbitration agreement as an affirmative defense in its amended answer.
The judge said that notified the plaintiffs of the employer's right to arbitrate, but not the intent to arbitrate.
My view: Don't appeal from this one.
August 14, 2005
Arbitration Law Memo
Arbitration Law Memo is a free monthly service summarizing employment arbitration and labor arbitration court cases that appeared earlier in Employment Law Memo. Not really a blog, although we use blog software.
- On the web: http://www.lawmemo.com/arb/memo/
- email subscription: http://www.lawmemo.com/signup/
- RSS feed: http://www.lawmemo.com/rss.htm
August 06, 2005
Manifest disregard for the law
"Manifest disregard for the law" is an issue that rarely comes up when courts review arbitration awards, especially in the context of a collective bargaining agreement.
The company fired an employee for excessive absences. The union grieved arguing that the last absence should have been excused because it qualified as FMLA leave. The collective agreement expressly incorporated the requirements of the FMLA.
The arbitrator reinstated the employee, finding that the absence was FMLA-qualified.
The company tried to overturn the arbitrator's award, claiming the arbitrator exhibited a manifest disregard for the requirements of the FMLA. Specifically, the argument was that the employee's illness did not render her unable to work.
The court affirmed the award, Electrolux v. UAW (8th Cir 08/05/2005), saying:
- The evidence "shows at most that the arbitrator committed an error in judgment, and mere error by the arbitrator is not a basis for reversal."
- The decision, "while possibly erroneous, drew its essence from the collective bargaining agreement, and we must enforce his award."
- Correct decision.
- Technically, analysis of "disregard of the law" should be used only when an arbitrator is directly interpreting the law, such as in an individual arbitration where an employee claims that the employer violated the FMLA. Here, the FMLA was incorporated into (and became part of) the contract, so the question is whether the award drew its essence from the contract. Same result either way.
August 03, 2005
NASD Discovery Arbitrator Pilot
NASD - National Association of Securities Dealers - announces a pilot program "to address concerns about the discovery process in arbitration." Here is the full text of the announcement:
Discovery Arbitrator Pilot
On August 1, 2005, NASD Dispute Resolution will launch a voluntary, two-year discovery arbitrator pilot to address concerns about the discovery process in arbitration. A single Discovery Arbitrator will be appointed to resolve all discovery disputes prior to the hearing. These Discovery Arbitrators will not be a part of the panel assigned to hear the merits of the case; they are appointed solely to resolve the parties' discovery disputes.
The pilot, which will run for two years, will be conducted in the Southeast and Western Regional Offices, and will be available in all of the hearing locations overseen by these regions. At the end of the two-year period, we will evaluate the results of the pilot before deciding whether to extend it to the other regions.
As a voluntary pilot, only those parties that sign a Stipulation agreeing to authorize the use of a Discovery Arbitrator may avail themselves of the program. Also, only those parties represented by counsel are eligible for the pilot. After the parties sign the Stipulation, they may not unilaterally withdraw from the pilot; however, all parties may agree in writing to discontinue use of the Discovery Arbitrator.
Selection of Discovery Arbitrator
The Discovery Arbitrators are pre-selected public arbitrators currently on Dispute Resolution's roster who are lawyers with experience in resolving discovery-related disputes. After the parties sign the Stipulation agreeing to participate in this program, the Director of Arbitration will appoint an arbitrator from this roster of Discovery Arbitrators. Once the Discovery Arbitrator is assigned to a particular case, the parties may only file a Challenge for Cause or a Director's Authority to Remove to challenge the appointment of the Discovery Arbitrator.
Authority of Discovery Arbitrator
Once the hearing commences, the Discovery Arbitrator's authority ceases. At that point, the panel appointed to hear the merits of the case will decide any new discovery issues. Until the hearings commence, the panel may not review any decision rendered by the Discovery Arbitrator. Thereafter, the panel may only review the Discovery Arbitrator's prior rulings on the basis of new facts or circumstances that arose after the commencement of the hearings.