Category Archives: Arbitration

Quirky Question #279: Concerted Activity in 140 Characters or Less

Question: I am a manager in a medium-sized retailer that has locations and employees in 16 states.  The company maintains a social media policy, which was recently updated.  Last week, I noticed that one of our employees posted some pretty nasty things about the company on Twitter.  She accused the company of not treating employees fairly because some had to work on days when others did not.  Perhaps worse, in response to customers who were praising the company’s products and services, she basically called the company cheap by saying it did not provide good pay or benefits.  I have not noticed any reaction from other employees to the tweets, but I am worried they will hurt employee morale and possibly drive away customers.  Is there anything I should consider before disciplining the employee who tweeted these things?


Question #273: Crafting a Concrete Non-Compete

Question: Our company uses non-compete and non-solicit agreements that bar former employees from having contact with any client of our company after they leave. One former employee who recently left is now claiming the agreement is invalid because it is “overly broad” in that it bars him from soliciting not only those clients of ours he used to work with, but clients he never had any dealings with.  I can see his point, but at the same time, how are we supposed to know when he signs the agreement which of our clients he will end up working with?


Quirky Question #268: E-Sign Away!

Question: We have our electronic handbook and arbitration agreement online, and all employees sign both electronically.  I saw a news blurb that a California court last year refused to enforce an arbitration agreement that was electronically signed.  Can’t we use electronic signatures in California?


Quirky Question #253, Private arbitrations becoming not-so-private?


I read with interest the answer to Quirky Question #248 about mandatory arbitration. You mentioned one of the benefits of arbitration being that is more private than a dispute in court, which is certainly a consideration for our company as we determine whether to implement this type of policy. Is that really the case, given the recent legislation I’ve heard about in California requiring arbitration companies to make public everything they do? Answer→

Quirky Question #245, Last chance agreements


We operate a manufacturing plant with a union workforce where new employees begin with a 90-day probationary period during which they are not yet members of the union. I recently hired a guy who refused to work overtime on several occasions, so I had him sign a “last chance” agreement in which he agreed that any further unexcused refusals would result in the termination of his employment. I also had him agree that he would not be able to grieve that termination because it would be based on his behavior that occurred during his non-union probationary period. As you could predict, last week after his probationary period ended and he joined the union, he refused to work overtime on Saturday. I plan to discharge him, but I’m worried that he’ll still grieve the discharge through the union and win his job back. What’s your advice? Answer→

FINRA Arbitration Rules Expanded to Exclude Collective Actions

FINRA Arbitration Rules Expanded to Exclude Collective Actions

FINRA’s ban on formal class-style employment claims is now complete. On May 4, 2012, the comment period closed on a proposed change to Rule 13204 of the FINRA Code of Arbitration Procedure for Industry Disputes (“Industry Rule 13204”). See S.E.C. Release No. 34-66774. The change, approved by the Securities and Exchange Commission, will soon expand FINRA’s existing prohibition of class-action arbitrations to bar collective actions as well. Answer→

Quirky Question # 186: Can Arbitration Agreements Ban Class Claims?


For many years, our company has required all employees to sign a contract agreeing to arbitrate any employment claims, including discrimination claims.  Last year we changed our form contract to make it clear that any arbitration only would cover the individual employee making the claim.  There would be no “class action” arbitrations or anything like that.  (We were told by another law firm that the Supreme Court had just ruled that this approach was legal.)

Now, we’ve got a terminated employee threatening to bring a class action against us.  His lawyer says our new arbitration contract violates the National Labor Relations Act and something called the Norris-Laguardia Act.  But, we aren’t even a union shop!  What’s going on here?  I thought the Supreme Court just said that we could ban class actions in our arbitration agreements. Answer→

Granite Rock Co. vs. International Brotherhood of Teamsters, Arbitration Issues Arising from a Disputed Collective Bargaining Agreement

Granite Rock Co. v. International Brotherhood of Teamsters

On June 24, 2010, in the final labor and employment law decision of its 2009-10 term, the Supreme Court decided the Granite Rock Co. v. International Brotherhood of Teamsters case and resolved two important issues in federal labor law.  Granite Rock centered around a dispute over the formation of a collective bargaining agreement (“CBA”) between concrete and building materials company Granite Rock and a Teamsters local union.  The Court rejected the union’s effort to compel arbitration of the parties’ dispute over the CBA’s formation date, concluding that disputes over the existence of a contract must be resolved by the courts.  Additionally, the Court affirmed the dismissal of Granite Rock’s claim against the international union for tortious interference with the CBA. Answer→

Rent-A-Center West, Inc. v. Jackson, A Divided Supreme Court Weighs In On Employment-Based Arbitration Agreements

Five to Four Decision Gives Employers Greater Confidence in the Reliability of Employment-Based Arbitration Agreements

Every working day countless newly-hired, newly-promoted, or newly-stock optioned employees have arbitration agreements placed in front of them, and most sign these agreements with little inquiry into their terms let alone actual back-and-forth negotiations.  Indeed, employers typically present such agreements as a condition of hire, promotion, or receipt of benefit, and employees assume, true or not, that they have no choice but to sign the agreements as presented to them.  For their part, employers have asked employees to sign these agreements assuming they will hold up under judicial scrutiny, but with enough uncertainty in the law to warrant a “we’ll cross that bridge when we come to it” disclaimer. Answer→