President Trump and #MeToo: Big Hitters on Arbitration Class Waivers

President Trump and #MeToo: Big Hitters on Arbitration Class Waivers

Alan Bush is a freelance contributor for Texas Lawyer. His latest article, “Big Hitters on Arbitration Class Waivers” appeared in the August print issue.

Both President Trump and #MeToo have had a huge impact on arbitration class waivers – which can make employee class lawsuits go extinct. Here’s what Alan had to say about it:

HR Arbitration and Eggs: Ditching the Bad Rap

HR Arbitration and Eggs: Ditching the Bad Rap

Eggs got a bad rap as cholesterol-soaked death-bombs. Researchers later realized that cholesterol wasn’t so bad for you after all, but the real problem was the greasy bacon and sausage often served with eggs. The eggs weren’t the issue; the pairing with fatty pork was.

Forum Selection Clauses and BBQ: Texas Lawyer

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Alan Bush is a routine a freelance contributor for Texas Lawyer. His latest article, "Make Forum Selection Like Barbeque," appeared in the March 17, 2014 issue. Lee Winkelman, of counsel with the firm, jumped aboard as co-author.

Thanks to a recent SCOTUS decision, companies now have a strong hand to pick where employee disputes will be litigated. Forum selection clauses in employment agreements and arbitration policies have real teeth.

Here's what Alan and Lee had to say about it:

Everybody wants their pick of forum to settle disputes.  Why else would lawyers go toe-to-toe about it at the courthouse?  But duking it out with an unhappy current or former employee is kind of like having a meal.  The cooking always tastes better at home.  Barbeque and lawsuits: They're both better in your own backyard.

Disputes with an employee-turned-plaintiff are no exception.  Last December in Atlantic Marine Construction Co. v. U.S. District Court for the Western District of Texas, the U.S. Supreme Court dealt a better hand to companies seeking to enforce a forum selection clause if an employee comes after them in court.

In-house counsel now have a choice.  Break out a streamlined employment dispute resolution process, like arbitration or jury waivers, with a forum selection provision?  Or tread the path to the employee's chosen courthouse to pick a jury?


Read the full article for more.  In it, Alan and Lee lay out some practical thoughts on:

  • Employment agreements, like a jury waiver or non-compete, that contain a forum selection clause;
  • Arbitration policies that mandate a set forum; and
  • When forum selection clauses are worth the effort.

Previously, Alan and Morgan have written about using streamlined dispute resolution methods – like arbitration policies and jury waivers – to control defense costs.  That Texas Lawyer article can be found here.

Use These Tips to Cut Defense Costs: Texas Lawyer

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Alan Bush is a routine a freelance contributor for Texas Lawyer.  His latest article, "Use These Tips to Cut Defense Costs," appeared in the January 20, 2014 issue.  Morgan Culbreth, an associate attorney with the firm, jumped aboard as co-author.

A reasonable hourly rate, of course, matters to controlling a defense spend.  But it goes a lot further.  Here's what Alan and Morgan had to say about it:

"No."  At the bargaining table, that's the most powerful word in the English language.  Although in-house counsel may desperately want to say "no" to a high settlement demand from an employee-turned-plaintiff, defense costs can force a company to settle for nuisance value.  Getting a handle on these costs can empower a company to do the right thing.

A solid dispute resolution system – whether it's an arbitration policy fortified with some key provisions or a plain old jury waiver – is key to taming even the most ferocious defense costs.  Enforcing a lean mentality among litigators is the final step in crafting a company's winning strategy...

Read the full article for more.  In it, Alan and Morgan lay out some practical thoughts on:

  • Streamlined arbitration procedures;
  • Arbitration class waivers which might make class and collective actions obsolete;
  • Jury waivers to secure a bench trial;
  • Lean HR defense principles.

Texas Lawyer: Top 5 Mistakes Made by New In-House Counsel

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Texas Lawyer has signed up Alan Bush as a freelance contributor.  His latest article, "Top 5 Mistakes Made by New In-House Counsel," appeared in In-House Texas pullout on August 5.

Here's what Alan had to say about the common blind-side risks that in-house counsel faces in handling HR matters:

Hindsight is 20/20.  When a lawsuit is done, I do an after-action report to look for lessons learned.  I've always found at least one thing I'll do differently next time.

External counsel, like me, has an unfair advantage to also look back on what our clients did before we jumped in.  We can see how an in-house counsel's early moves with an HR matter impact a company's position in litigation.  Some HR issues can slip past in-house counsel new to handling them.  These are blind-side risks.  Let's take a moment — without laying blame — to highlight five of those risks...

Read full article for more.  In it, Alan lays out some practical thoughts on missteps in:

  • Putting compliance ahead of business;
  • Neglecting a dispute resolution plan;
  • Bad-mouthing an opponent;
  • Trampling on the crime scene; and
  • Changing tune.

Labor Takes a Big Hit

The NLRB has handed down boatloads of pro-union decisions since President Obama appointed three members to the NLRB while Congress was in recess.  The decisions are now in serious question.  Reset button, anyone?

The D.C. Court of Appeals just ruled that the President's recess appointments violated the Constitution.  That nails three members of the five-member board, which deprives it of a quorum.  Expect the NLRB to appeal to the Supreme Court.

Unless the Supreme Court reverses course, all those pro-union NLRB  decisions could get tossed into the waste basket.  The NLRB had stepped into the mix on some sensitive issues like:

  • Arbitration class action waivers
  • Social media
  • Witness statements
  • Bargaining unit gerrymandering

Stay tuned.

Arbitration Class Waivers: Another Victim of the NLRB

Remember those pesky overtime claims where one bad policy can trigger a class action-like lawsuit?  We've suggested heading off the class warfare with mandatory arbitration policies that prohibit class-wide arbitration.  Well, the NLRB just stuck its nose into that too.  And you can imagine how that one went...

Class waivers, says the NLRB in D.R. Horton, violate employees' NLRA-guaranteed right to engage in "concerted activity."  Not that long ago, the NLRB used this same right to move aggressively into regulating social media.  If you force employees to sign an arbitration policy that has a class waiver, the NLRB will haul you in for an unfair labor practice.

The NLRB's ruling applies to you so long as you're covered by the NLRA—even if you're union free.

But there's good news.  Managers, supervisors and independent contractors have no right to engage in "concerted activity" under the NLRA.  The NLRB's ruling does not cover them.  Satisfy the NLRB that your worker falls into one of those groups and you might require a class action waiver.

What about class waivers that are selectively imposed?  Instead of including the waiver in a blanket arbitration policy for all employees, you might have all (or many of) your exempt employees sign an arbitration agreement with a class waiver.  That might keep classes of your employees from ganging together to claim they were misclassified as salaried exempt.  Better be sure, though, that the workers truly meet the NLRA's definition of managers, supervisors or independent contractors.  Or you the NLRB could put you in a world of hurt.

I doubt we've heard the last of D.R. Horton.  The NLRB's ruling will probably be appealed to the courts.  Stay tuned.