There are times when one would rather not be proven right. Nearly four years ago, a California district court invalidated AB 51, which sought to prohibit mandatory arbitration by, among other things, calling for criminal sanctions against employers who use such agreements. Chamber of Commerce of the United States v. Becerra, Case No. 2:19-cv-02456-KJM-DB (E.D. Cal.). We noted then that long-settled case authorities and basic constitutional law all dictated the conclusion that California could not seek to invalidate the Federal Arbitration Act (FAA) through state  legislation. We concluded ..read more

Court also holds that arbitrability questions must be resolved by the arbitrator The 10th Circuit has decided two significant issues in an otherwise garden-variety off-the-clock case, one relating to arbitration and the other to one inherent problem in such cases. Brayman v. Keypoint Government Solutions, Inc., Case Nos. 22-1118 & 22-1168 (10th Cir. 2023). The facts of the Brayman case were generally unremarkable. The defendant was in the business of performing investigations and background checks for various federal agencies. It employed field investigators to undertake the necessary ..read more

While several recent Supreme Court decisions have garnered significant headlines, the Court’s late June ruling in Coinbase, Inc. v. Bielski, (Case No. 22-15), likely flew under the radar for the national media outlets. For practitioners who frequently deal with motions to compel arbitration, however, the justices’ 5-4 decision resolves a circuit split and follows the majority of courts by mandating an automatic stay when a party seeks an appeal on a right to arbitrate. The underlying case involved a pair of California district courts that refused to compel arbitration involving the Coinba ..read more

The Coinbase case involves a joint petition for writ of certiorari that could have a major impact on motions to compel arbitration under the Federal Arbitration Act (FAA). Coinbase, Inc. v. Bielski, Case No. 22-105 (oral argument Mar. 21, 2023, in the Supreme Court of the United States). It raises an important issue – must a party seeking the right to arbitrate on appeal continue to defend trial proceedings in district court, no matter the impact? Section 16(a) of the FAA, added in 1988, provides that when a motion to compel arbitration is denied by a district court, the moving party can immed ..read more

One relatively common misapprehension by employers is that generous wages or popular methods of payment will satisfy the Fair Labor Standards Act (FLSA). On February 22, 2023, the Supreme Court reiterated the need not simply for “fair” employment policies or high wages but for adherence to the specific tests for exempt employees. In Helix Energy Solutions Group, Inc. v. Hewitt, Case No. 21-984 (U.S. Sup. Ct. Feb. 22, 2023), the plaintiff was a supervisor working on an oil rig for the defendant. It was undisputed that he performed executive exempt duties as a supervisor and made over $200,000 p ..read more

Today the Illinois Supreme Court issued a decision in Cothron v. White Castle System, Inc. 2023 IL 128004, in which the court held that the statute of limitations accrues with each scan or transmission of biometric identifiers or biometric information for claims arising under Sections 15(b) and 15(d) of the Illinois Biometric Information Privacy Act, 740 ILCS 14/1, et seq. (BIPA). Section 15(b) pertains to notice and written consent before collecting, capturing, purchasing, receiving through trade, or otherwise obtaining biometric data. Section 15(d) pertains to the disclosure, redisclosure, o ..read more

Earlier today, the Illinois Supreme Court issued a decision in Tims v. Black Horse Carriers, Inc., 2023 IL 127801, in which the court held that a five-year statute of limitations applies to all claims arising under the Illinois Biometric Information Privacy Act, 740 ILCS 14/1, et seq. (BIPA). There are five primary sections under BIPA. Section 15(a) pertains to the establishment and maintenance of and adherence to a retention schedule and guidelines for destroying collected biometric information. Section 15(b) pertains to notice and written consent before collecting or storing biometric inform ..read more

Two DoorDash delivery drivers filed a class action against the company and two of its employees alleging violations of federal and state wage and hour laws. After removal of the case to the Southern District of New York, the defendants filed motions to compel arbitration, to strike the complainants’ class action allegations and to stay the case pending resolution of the individual claims. Judge Valerie E. Caproni of the Southern District of New York, a 2013 President Obama nominee, analyzed a number of the critical issues presented in the case before granting the defendants’ motion. Mullo v. D ..read more

Most employers today have anti-harassment policies covering race, gender and other types of discrimination to help comply with state and federal antidiscrimination legislation and to take advantage of the affirmative defense described in Faragher v. City of Boca Raton, 524 U.S. 775 (1998) and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998). But what happens when employees are dissatisfied with the results of the investigations undertaken pursuant to those policies? That was the question answered by the court in Brown v. The Board of Trustees of the University of Illinois, Case No ..read more

While the Supreme Court’s opinion in Southwest Airlines Co. v. Saxon, 142 S. Ct. 1783 (2022), brought needed clarity to the analysis of the class of workers excluded as “transportation workers” by the residual clause of the Federal Arbitration Act (FAA), many questions remain. We blogged about the Saxon decision on June 8, 2022. The plaintiffs-appellants in Bissonnette v. LePage Bakeries Park St. LLC., No. 20-1681 (Amended Sept. 26, 2022), who deliver baked goods to stores and restaurants in Connecticut, brought a putative class action against the company and its subsidiaries that manufacture ..read more