You Can’t Have Your Cake And Eat It Too: Ninth Circuit Confirms a Party May Waive Its Right to Arbitration by Its Conduct
- Written by Rebecca Hause-Schultz
When properly drafted, arbitration agreements can protect employers from lengthy and expensive litigation in court. However, even when an arbitration agreement is valid, it may be waived by a party’s conduct during litigation. On June 21, 2016, the Ninth Circuit Court of Appeal confirmed this rule in Martin v. Yasuda.
In Martin, Plaintiffs were a group of cosmetology students who had studied at Defendants’ cosmetology school. As part of their enrollment in the school, Plaintiffs signed an arbitration agreement. The agreement provided that any dispute with the school would be subject to binding arbitration.
Despite the signed arbitration agreement, Plaintiffs filed a class-action lawsuit seeking unpaid wages and penalties. Plaintiffs contended that they were entitled to minimum hourly wages, overtime wages, and unpaid premiums for missed meal and rest breaks for the services they provided to the school, such as cleaning and washing laundry, that were unrelated to their education.
“Loud, Profane, Disrespectful” And “Confrontational” Employee Misconduct Not Sufficient to Warrant Discipline, According to the NLRB
- Written by Jacquelyn E. Larson
The NLRB recently issued yet another troubling decision in its ongoing campaign against an employer’s ability to enforce discipline in the workplace. Last week, in a dispute between the United States Postal Service and American Postal Workers Union, AFL-CIO, Local 128, the Board ruled that a confrontation during which an employee “pepper[ed] her language with profanity,” “used ‘the F word a lot,’” and aggressively moved and gestured toward a supervisor, was not extreme enough conduct for the employee to lose her protections under the National Labor Relations Act (“NLRA”).
Under existing law, an employee can lose the protections of the NLRA by engaging in certain egregious misconduct. Employee misconduct like profane, threatening, and violent outbursts at a supervisor can justify an employer taking lawful disciplinary action, even when the interaction involves protected subject matter. The Board will also look at other factors beyond the subject matter of the discussion and the nature of the outburst, including where the outburst took place and whether the outburst was provoked.