Tag Archives: Supreme Court

Arbitration Update: Eleventh Circuit Finds in Favor of Florida Employers

Florida employers are beginning to benefit from recent U.S. Supreme Court and National Labor Relations Board (NLRB or Board) rulings.  On June 26, 2018, the federal Eleventh Circuit Court of Appeals issued two decisions in favor of Florida employers in which it rejected NLRB rulings that the employers had violated the National Labor Relations Act (NLRA). The cases are Everglades College, Inc. v. NLRB and Cowabunga, Inc. v. NLRB.

Applying the Supreme Court’s Epic Systems decision (for further information on Epic, click here), the Eleventh Circuit held in both cases that the inclusion of class and collective action waivers in these employers’ mandatory arbitration agreements did not violate the NLRA. Additionally, relying on the Board’s Boeing decision (for more information, on Boeing click here), the Eleventh Circuit vacated the NLRB’s holdings that the arbitration agreements were unlawful because employees could “reasonably believe that they were prohibited from filing unfair labor practice charges with the NLRB.”

In Boeing, the NLRB retroactively changed the rationale it used to evaluate the lawfulness of facially neutral employee policies, thus eliminating the broadly applied “reasonably believe” standard that prohibited any rule that could be interpreted as covering protected activity. Without that standard, the Board could not defend its prior decisions in the appeals. Therefore, the Eleventh Circuit remanded the remaining issues in the cases to the NLRB so that it can apply its new Boeing rationale, which does not interpret ambiguities against the drafter and does not ban all activity that could conceivably be included in generalized provisions.

Even with the NLRB General Counsel’s recent memo addressing the application of the Boeing standard (for more on the memo, click here), it is unclear how the Boeing rationale will apply to arbitration agreements. Regardless, employers should remain hopeful as the new standard provides for a more balanced review.

Gail E. Farb
gfarb@williamsparker.com
941-552-2557

[Editor’s Note: Williams Parker attorney Gail E. Farb represented the employer in the Everglades College, Inc. case cited above.]

Reinforcing Florida Employers’ Ability to Protect Valuable Business Relationships

Florida employers and their attorneys received good news in September when the Florida Supreme Court finally issued its opinion in White v. Mederi Caretenders Visiting Services of Southeast Florida, LLC, 42 Fla. L. Weekly S803a (Fla. 2017). At issue in White, was whether referral sources could constitute protectable legitimate interests under Florida Statute s. 542.335. The Florida Supreme Court answered this question in the affirmative, holding that referral sources can be protectable interests sufficient to support a restrictive covenant in a non-compete/non-solicitation agreement.

For more information on how employers can protect their valuable information and business relationships see our previous post.

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
(941) 552-2558

The United States against the United States? A Government Flip-Flop That May Help Employers

On June 16, 2017, the U.S. Department of Justice did an about-face when it filed an amicus brief with the Supreme Court of the United States in an important labor arbitration case, NLRB v. Murphy Oil USA. The Murphy case presents the question of whether arbitration agreements can restrict employees from participating in class or collective actions. The brief filed by the Department of Justice argues that employers can impose such restrictions. See the full brief here.

Arbitration agreements have traditionally required employees to submit their claims to arbitration rather than through the court system. The trend over the last several years is for employers to include class action or collective proceeding waivers in such agreements. Such provisions are believed to reduce litigation costs associated with class and collective actions (which are on the rise). In response to this trend, the NLRB ruled that such waivers violate the NLRA when they are a condition of employment.

Several of the NLRB’s cases regarding such arbitration agreements have been appealed to the circuit courts, resulting in contradictory decisions on this issue. The Second, Fifth, and Eighth Circuits held that such arbitration agreements are enforceable, with the Seventh Circuit finding that these agreements violate the NLRA. There are similar challenges to agreements being made in other circuits, including the Eleventh Circuit. Based on the split of authority on this issue, the Supreme Court accepted review of the case argued before the Fifth Circuit Court of Appeals.

When the NLRB submitted its petition for writ of certiorari in Murphy, the Department of Justice supported the NLRB and its argument that the ability for an employee to engage in concerted activities is the “core substantive right” of the NLRA, and prohibiting class and collective actions infringe on that right. However, in its new brief, the Department of Justice argues that the NLRB failed to give adequate weight to the congressional policy of favoring arbitration agreements. This change of heart by the Department of Justice creates the potential for an unusual situation. Typically, when the Solicitor General’s office files an amicus brief, a lawyer for the government will present oral argument before the court on that side of the case. Given that the NLRB sits on the other side of the case, the upcoming oral arguments may consist of a lawyer for the United States arguing against a lawyer for a U.S. agency: the United States arguing against the United States.

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
(941) 552-2558