Worker's Claims Sent to Labor Arbitration if "Clear and Unmistakable" Collective Bargaining Agreement

This week the Second Circuit heard argument in Attending Homecare v. Abdullayeva, 2d Cir. App., 18-0651. The case turns on whether "clear and unmistakable" language in the collective bargaining agreement (CBA) requires employees to arbitrate their Fair Labor Standards Act (FLSA) claims.

While the district court said “The arbitration provision relied on is confusing. It does not clearly require Plaintiff to arbitrate her claims”, the Second Circuit might well find that the following CBA language clearly and unmistakably requires Plaintiff to arbitrate FLSA claims: “all claims brought by either the Union or Employees, asserting violations of or arising under the Fair Labor Standards Act ("FLSA'), New York Home Care Worker Wage Parity Law, or New York Labor Law (collectively, the "Covered Statutes"), in any manner, shall be subject exclusively, to the grievance and arbitration procedures described below.”

Bloomberg News story on this case includes analysis by me and Prof. Imre Szalai.

Arbitrators' Subpoena Powers

The Ninth Circuit recently discussed arbitrators' subpoena powers and discovery in the case of CVS Health Corporation v. Vividus, LLC, No. 16-16187 (9th Cir. Dec. 21, 2017).

The court held that while Federal Arbitration Act Section 7 gives arbitrators the authority to subpoena witnesses for a hearing, including bringing documents to the hearing, it does not give arbitrators power to subpoena documents prior to a hearing. 

Loyola New Orleans Law Professor Imre Szalai writes:
"The Ninth Circuit noted that its decision conflicted with the Eighth Circuit, which has held that section 7’s broad subpoena power for a hearing encompasses the lesser subpoena power regarding pre-hearing discovery...In my view, the Ninth Circuit is interpreting the FAA correctly, as originally intended.  (Remember, back in the 1920s, broad pre-hearing discovery as we know it today under the Federal Rules of Civil Procedure did not exist.)"

 Video of oral argument  https://www.youtube.com/watch?v=C0FgDZ7csT4

Correcting a Flaw in the Arbitration Fairness Act

Correcting a Flaw in the Arbitration Fairness Act by Loyola Law Professor Imre Szalai. in the Journal of Dispute Resolution:

The Introduction:

The proposed Arbitration Fairness Act of 2013 will ban courts from enforcing
arbitration agreements in the employment and consumer contexts. This law will
protect America's employees and consumers by keeping the courthouse door open
to critical civil rights, employment, and consumer protection litigation. However,
the proposed Arbitration Fairness Act suffers from a subtle flaw: it is uncertain
whether the law will apply to the states. This flaw, which arises from one of the
greatest constitutional errors the Supreme Court has ever made, must be corrected
in order to provide the broadest protection to millions of American employees and
consumers, and to prevent years of needless litigation and confusion.

Consumer Arbitration Debate, CFPB

Participants in this debate include the Consumer Bankers Association's Steve Zeisel, California Arbitration and Mediation's Marc Alexander and Law Professor Imre Szalai.

Arbitration Video by Loyola New Orleans Law Professor Imre Szalai

Professor Szalai's book Outsourcing Justice is here

His strongly-worded video is at this YouTube link