Today, the United States Supreme Court ruled in Epic Systems Corp. v. Lewis, No. 16-285 that employers could lawfully require employees to waive their rights to pursue employment-related class actions through arbitration agreements providing for individualized proceedings. In a 5-4 decision, the Court ruled that such waivers do not violate the National Labor Relations Act.

Continue Reading Of Elephants and Mouseholes: Supreme Court Holds Employers Can Lawfully Require Class Action Waivers in Arbitration Agreements

On April 30, 2018, the California Supreme Court substantially narrowed the class of individuals who qualify as independent contractors under California wage-hour law and paved the way for a new wave of class actions. In Dynamex Operations West, Inc., the Court adopted the restrictive “ABC test” used in other jurisdictions for determining when a worker qualifies as an independent contractor under California’s Industrial Wage Orders.

Under that test, the court presumes‌ all workers qualify as employees. A hiring entity can prove that the worker qualifies as an independent contractor only if it can show that the worker:

A) is free from the control and direction of the hirer in connection with the performance of the work, both under the contract for the performance of the work and in fact; and

B) performs work that is outside the usual course of the hiring entity’s business; and

C) is customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed.

Continue Reading California Narrows Definition of Independent Contractor; Upends 30-Year Old Test

Yesterday the Second Circuit cast doubt on whether an arbitrator can certify a class that includes absent class members.  The court remanded for the district court to decide “whether the arbitrator exceeded her authority in certifying a class that contained absent class members who have not opted in.”  Jock v. Sterling Jewelers, Inc., No. 15-3947-cv (2d Cir. July 24, 2017).  The case poses potentially big implications for class arbitration’s ability to resolve cases with finality.

Continue Reading Second Circuit Questions Arbitrators’ Authority Over Absent Class Members