John Lewis

Firm/Organization: Baker & Hostetler LLP

Blogs: Class Action Lawsuit Defense, Employment Class Action Blog, Employment Law Spotlight

Latest Articles

California Enacts Anti-Arbitration Legislation, but Will the FAA Limit Its Potential Impact? Not Entirely.

October 11, 2019

On Oct. 10, California Governor Gavin Newsom signed into law an attempt by California’s Legislature to limit arbitration of claims under California’s Fair Employment and Housing Act (“FEHA”). FEHA prohibits harassment, discrimination and retaliation on the basis of various protected characteristics, such as gender, age, disability or national origin. Taking effect Jan. 1, 2020, AB 51 amends the California Labor Code to provide the following: An employer cannot require that an employee agree to arbitrate any…

Employment Class Action Blog

Third Circuit Opinion Involving Uber Only Adds More Questions to the Dispute Over the Scope of the FAA Section 1 Residual Clause

By John Lewis

September 13, 2019

Recent decisions have cast doubt on the enforcement of arbitration clauses in the context of the interstate transportation of goods, but will those limitations extend to the transportation of passengers? And what if the movement does not cross state lines? In a Sept. 11, 2019, opinion, the Third Circuit found that the residual clause of the Federal Arbitration Act’s (FAA) Section 1 “may extend” to a class of Uber drivers “who transport passengers, so long…

Employment Class Action Blog

Ohio Supreme Court Addresses Waiver of the Right to Arbitrate in the Putative Class Action Context

By John Lewis

August 19, 2019

In Gembarski v. PartsSource, Inc. (Slip Opinion No. 2019-Ohio-3231, decided Aug. 14, 2019), the Supreme Court of Ohio clarified the standards for waiver of the right to arbitrate in the class action context where only unnamed putative class members but not the single named plaintiff had agreed to arbitration. The court ultimately concluded that the employer did not waive the right to raise the “arbitration defense,” and that not raising arbitration in the answer…

Employment Class Action Blog

The Fifth Circuit Agrees With Its Sister Circuits That Class Arbitrability Is a Gateway Issue for Courts, Not Arbitrators

By John Lewis

July 24, 2019

In a predictable decision, the Fifth Circuit has held that the availability of class arbitration is a gateway issue for the courts to decide, absent “clear and unmistakable” language in the arbitration agreement to the contrary. The appellate court didn’t find such language in 20/20 Commc’ns v. Crawford, Case No. 18-10260 (5th Cir. July 22, 2019). Instead, the Court followed the lead of several of its sister circuits – the Fourth, Sixth, Seventh, Eighth, Ninth…

Employment Class Action Blog

NY Law Doesn’t Prevent Arbitration of Sexual Harassment Claims

By John Lewis

July 1, 2019

Recent New York legislation in reaction to the #MeToo movement has sought to limit or foreclose arbitration of employment-related disputes. See N.Y. C.P.L.R. § 7515 (“§ 7515”) and its June 19, 2019, amendment, bill S6577/A842. The bill, initially signed into law in April 2018, was to “deal[] with the scourge of sexual harassment.” See N.Y. State Senate, Stenographic Rec., 241st Leg., Reg. Sess., at 1855 (Mar. 20, 2018). But some believed that the Federal Arbitration…

Employment Class Action Blog

Can Delivery Drivers Be Compelled to Arbitrate After New Prime? New Jersey Appellate Courts Seem to Take Conflicting Positions

By John Lewis

June 10, 2019

After New Prime v. Oliveira, 139 S. Ct. 532 (2019), many wondered if state arbitration law could be applied when transportation workers were found to be exempt from the Federal Arbitration Act (FAA) based on § 1. See our January 17, 2019, March 12, 2019 and April 29, 2019 blog posts on the issues raised by New Prime in the transportation industry. Two New Jersey appellate panels now have considered the issue and reached…

Employment Class Action Blog

Recent Decisions Don’t Provide Useful Guidance on Tests for the FAA Exemption of Transportation Workers

By John Lewis

April 29, 2019

Sometimes being right is not a virtue, especially when it comes to the Federal Arbitration Act § 1 exemption. We predicted uncertainty after the New Prime v. Oliveira decision and got it. See our Jan. 17, 2019, blog post on the exemption. Indeed, if anything, recent decisions have raised more questions than answers. Part of the problem stems from the fact that in New Prime the parties admitted that Oliveira worked in interstate commerce, so applicable…

Employment Class Action Blog

SCOTUS Reverses Ninth Circuit on Proper Bases for Class Arbitrations

By John Lewis

April 25, 2019

The U.S. Supreme Court, in a 5-4 decision, ruled that arbitration agreements must provide a “contractual basis for concluding that the part[ies] agreed to [class arbitration].” Reversing the Ninth Circuit, Chief Justice John Roberts found not only that the Court had jurisdiction over the case but also that the state law contract construction rule dealing with ambiguity applied by the Ninth Circuit was inconsistent with the Federal Arbitration Act core principle that consent of the…

Employment Class Action Blog

Kentucky Rejoins the Majority – New Law Permits Mandatory Arbitration Agreements

By John Lewis

March 28, 2019

A Sept. 27, 2018, Kentucky Supreme Court ruling found that mandatory arbitration agreements conditioned on employment were not enforceable. See Northern Kentucky Area Development District v. Snyder, No. 2017-SC-000277-DG. The opinion not only isolated Kentucky regarding its enforcement of arbitration agreements but also raised issues regarding the potential impact of Federal Arbitration Act (FAA) pre-emption. In the case, Danielle Snyder, who worked as an administrative purchasing agent, brought an action under the Kentucky Whistleblower…

Employment Class Action Blog

Arbitration for Transportation Workers? The Anticipated Push To Expand the FAA Exemption

By John Lewis

March 12, 2019

As we indicated in a January 17, 2019 blog article, the New Prime v. Oliveira, 139 S. Ct. 532 (2019), opinion was likely to lead to uncertainty in the transportation industry. Some imaginative commentators even forecast that the Federal Arbitration Act (FAA) Section 1 exemption could be a tool to unravel arbitration agreements with class waivers in a broad swath of companies that transport, carry or deliver goods or commodities. We believe those commentators,…

John Lewis

California Enacts Anti-Arbitration Legislation, but Will the FAA Limit Its Potential Impact? Not Entirely.

Third Circuit Opinion Involving Uber Only Adds More Questions to the Dispute Over the Scope of the FAA Section 1 Residual Clause

Ohio Supreme Court Addresses Waiver of the Right to Arbitrate in the Putative Class Action Context

The Fifth Circuit Agrees With Its Sister Circuits That Class Arbitrability Is a Gateway Issue for Courts, Not Arbitrators

NY Law Doesn’t Prevent Arbitration of Sexual Harassment Claims

Can Delivery Drivers Be Compelled to Arbitrate After New Prime? New Jersey Appellate Courts Seem to Take Conflicting Positions

Recent Decisions Don’t Provide Useful Guidance on Tests for the FAA Exemption of Transportation Workers

SCOTUS Reverses Ninth Circuit on Proper Bases for Class Arbitrations

Kentucky Rejoins the Majority – New Law Permits Mandatory Arbitration Agreements

Arbitration for Transportation Workers? The Anticipated Push To Expand the FAA Exemption

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