Even employee claims of sexual harassment that occurred before the effective date of the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (EFAA) may end up in court. In Olivieri v. Stifel, Nicolaus & Co., the Second Circuit Court of Appeals held that acts occurring before the effective date of the EFAA can be deemed to be part and parcel with acts occurring after the effective date–so that all of the claims accrue as of the later date and are subject to the EFAA.

What happened

Patricia Olivieri filed suit against her employer Stifel, Nicolaus & Co. (Stifel) and several coworkers in 2021 alleging gender-based discrimination, hostile work environment and retaliation claims under Title VII and the New York State Human Rights Law (NYSHL). Olivieri alleged her manager sexually assaulted and repeatedly sexually harassed her, and that after she reported her manager to the company, the defendants allegedly subjected her to a hostile work environment characterized by discrimination and retaliation.

Stifel moved to compel arbitration of Olivieri’s claims based on an arbitration clause in the plaintiff’s employment agreement. The US District Court for the Eastern District of New York initially granted Stifel’s motion to compel in late March 2022, not having been made aware of the enactment of the EFAA on March 3, 2022 by any party. (The EFAA allows a plaintiff alleging sexual harassment or sexual assault to void a pre-dispute arbitration agreement at their discretion. Claims under the EFAA accrue “on or after” March 3, 2022.) In light of the EFAA, Olivieri subsequently moved for reconsideration of the district court’s order requiring her to arbitrate her claims, and the district court turned course, vacating its prior decision and denying the employer’s motion to compel arbitration. The district court concluded that the plaintiff’s hostile work environment claims–which alleged a hostile work environment and retaliation both before and after the effective date of the EFAA–were subject to the continuing violation doctrine of accrual and accrued after the EFAA’s effective date. Therefore, the EFAA applied to allow the plaintiff to void her pre-dispute arbitration agreement. On appeal, a three-judge panel of the Second Circuit unanimously affirmed.Continue Reading Before, After, or Both? Second Circuit Rules Pre-EFAA Activity Can Go to Court Instead of Arbitration

California’s latest attempt to restrict employment arbitration was foiled by the Ninth Circuit Court of Appeals last Wednesday. On February 15, 2023, a three-judge panel decided that AB 51 (which prohibits employers from “forcing” job applicants or employees to enter into pre-dispute employment arbitration agreements covering certain discrimination and retaliation claims) is preempted by the Federal Arbitration Act (FAA). In doing so, the Ninth Circuit reversed its prior decision in the same case, issued by the same three-judge panel, which partially upheld AB 51 in 2021. While we expect the California Attorney General to challenge the Ninth Circuit’s February 15 decision, California employers can breathe a sigh of relief for now knowing it’s still lawful for most to continue to require arbitration agreements.Continue Reading California Employers Still Can Require Arbitration. For Now.

We are pleased to share a recent Bloomberg Law article, “Gig Economy Companies Brace for Crucial Year as Challenges Mount,” with commentary from Mike Brewer. The article discusses the gig economy facing another year of upheaval as the Biden administration eyes actions to address worker rights, court battles continuing to play out across the country,

2019 kept US employers on their toes. From intensifying scrutiny of independent contractor relationships, data privacy changes, and hostility to arbitration agreements to continued pressure to examine pay data, increasing employee activism and politically charged discourse in the workplace, it has been a busy year!

Click here to continue reading the US Employment Law Digest.

In August, the United States Court of Appeals for the Sixth Circuit (covering Kentucky, Michigan, Ohio and Tennessee) upheld an arbitration agreement that required individual arbitration of claims under the federal Fair Labor Standards Act (FLSA). The Court’s decision is in line with the United States Supreme Court’s decision in Epic Systems Corp. v. Lewis.
Continue Reading Sixth Circuit Upholds Mandatory Arbitration Of FLSA Claims

In our latest episode, listen to partners Arthur Rooney and Mike Brewer discuss the recent decision from the US Supreme Court regarding class action waivers in arbitration agreements.

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But Are They Right for Your Workforce?

The US Supreme Court issued a highly anticipated decision on May 21, 2018 in Epic Systems Corp. v. Lewis, holding that class action waivers in arbitration agreements are fully enforceable, notwithstanding the right to engage in concerted activity under the National Labor Relations Act.

Although employers now

The use of mandatory employment arbitration agreements has long been the subject of debate, but the controversy has intensified since the inception of the #MeToo movement. Some legislators believe that mandatory arbitration of sexual harassment claims silences harassment victims and perpetuates harassment.
Continue Reading #MeToo Breaks Silence, Legislators Follow: Arbitration Agreements