Arbitration

New Law Bans Forced Arbitration of Sexual Harassment and Assault Claims

March 4, 2022 | by Jonathan I. Nirenberg

Arbitration is widely believed to favor big business over individuals. I have written numerous articles about forced arbitration, including cases that enforced arbitration of employment law claims, and ones that overturned such provisions. In my law practice, I have fought against forced arbitration on many occasions.

Yesterday, President Biden signed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 into law. As its name suggest, this law now prohibits forced arbitration of sexual harassment and sexual assault claims. The law received bipartisan support in Congress, a rare feat in the current political climate.

The new statute deems that a person who files a case in which he or she alleges sexual harassment or sexual assault cannot be forced to be bound by an arbitration agreement or class or collective action waiver that he or she entered into before the dispute arose. However, the person asserting the sexual harassment or assault still can chose to enforce an arbitration agreement. Likewise, parties still can agree to enter into arbitration agreements after a dispute involving sexual harassment or sexual assault if that is their preference, and either party can enforce such an agreement.

Employer Too Late to Compel Arbitration in Whistleblower Lawsuit

February 9, 2022 | by Jonathan I. Nirenberg

In a recent employment law case, New Jersey’s Appellate Division ruled that an employer had waived its right to compel arbitration by waiting 10 months before it sought to do so.

Tevin Welcome worked as a van driver for Huffmaster, Inc. Before Huffmaster hired him, Mr. Welcome completed an online application. The application included an arbitration provision, which indicated that if he accepted a job with the company, then he would have to resolve any dispute with the company, including claims of discrimination or retaliation, through arbitration instead of in court.

When Huffmaster hired Mr. Welcome, he moved from Texas to New Jersey for the job. However, he quickly discovered that few of his coworkers and the clients who rode in the van he drove complied with New Jersey’s COVID-19 mask mandate. Mr. Welcome was particularly concerned that he could get COVID and give it to his six-year-old son who has health problems.

Court Must Reconsider Whether Sexual Harassment Victim Agreed to Arbitration

November 12, 2021 | by Jonathan I. Nirenberg

A recent decision by New Jersey’s Appellate Division makes it clear that a court must have clear proof an employee agreed to arbitration before an employer can force an employee to arbitrate her case.

Nikki Cordero applied for a job with Fitness International, LLC, also known as LA Fitness International. A few days later, LA Fitness interviewed Ms. Cordero and offered her the position.

On Ms. Cordero’s first day of work, the Gym’s General Manager, Ryan Farley, had her electronically sign a series of documents that he said she needed to sign before she could start her training. According to Ms. Cordero, she did so without seeing what she was signing.

Arbitration Agreements Do Not Need to Designate Rules or Forum

September 16, 2020 | by Jonathan I. Nirenberg

Last week, the New Jersey Supreme Court ruled that, to be enforceable, an arbitration agreement does not necessarily have to set forth the rules or procedures that will apply in arbitration or to select a forum for the arbitration.

The case involved Marilyn Flanzman, who worked for Jenny Craig as a weight maintenance counselor in Paramus, New Jersey, for almost 27 years. In 2011, she signed an Arbitration Agreement with Jenny Craig. That agreement states that all disputes, including discrimination claims, must be resolved through “final and binding arbitration” rather than a jury or other civil trial.

In February 2017, Jenny Craig reduced Ms. Flanzman from thirty-five hours per week to nineteen hours per week. At the time, Ms. Flanzman was 82 years old. In April 2017, Jenny Craig further reduced Ms. Flanzman’s hours, to approximately thirteen hours per week. In June 2017, the company reduced her to only three hours per week. When Ms. Flanzman complained to her supervisors, they told her: “That is just the way it is,” and that if she did not accept her new schedule she would be fired. Ms. Flanzman, who apparently was the only employee in Paramus whose hours were reduced so dramatically, rejected the three-hour-per-week schedule.

Employees Cannot Waive Punitive Damages Under New Jersey Law Against Discrimination

September 17, 2018 | by Jonathan I. Nirenberg

A recent unpublished opinion from the New Jersey Appellate Division holds that employees cannot waive in advance their right to recover punitive damages under the New Jersey Law Against Discrimination (“LAD”).

Milagros Roman worked for Bergen Logistics LLC as a human resources generalist. She claims that her immediate boss, Human Resources Director Gregg Oliver, made sexual advances toward her. She further alleges that Mr. Oliver retaliated against her by firing her because she complained about the sexual harassment.

Ms. Roman filed a lawsuit against Bergen and Mr. Oliver, claiming they harassed and retaliated against her in violation of the LAD. The defendants filed a motion to dismiss her case and refer it to arbitration. They relied on the fact that when Bergen hired Ms. Roman, she signed an arbitration agreement that required her to resolve any disputes relating to her employment relationship in binding arbitration rather than in court. That agreement includes a provision which states that: “BY SIGNING THIS AGREEMENT YOU AND COMPANY ARE WAIVING ANY RIGHT, STATUTORY OR OTHERWISE, TO A TRIAL BY JURY AND TO PUNITIVE AND EXEMPLARY DAMAGES.”

Exotic Dancer Can Bring Overtime Claim in Court Despite Arbitration Agreement

September 14, 2017 | by Jonathan I. Nirenberg

In a recent ruling, the Third Circuit Court of Appeals concluded that an arbitration agreement did not prohibit an exotic dancer from pursuing her overtime and minimum wage claims in court.

Alissa Moon worked at the Breathless Men’s Club, which is in Rahway, New Jersey. The Club treated her as an independent contractor, rather than an employee. In fact, she had to agree to rent space from the Club where she could perform, and signed an “Independent Dancer Rental Agreement” which expressly states that she is an independent contractor.

That agreement also includes the following arbitration provision: