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Managing the Modern Workplace
V&E International Labor & Employment Resources

Is Brazil Blazing a Trail on Employment Arbitration?

Adding an arbitration provision to an employment contract has been a familiar practice for many HR professionals in the United States. That’s unlikely to change, particularly since the U.S. Supreme Court recently upheld employment arbitration agreements barring class actions, see Epic Systems Corp. v. Lewis. But what about the rest of the world? Although arbitration of commercial claims is mainstream on the global stage, that’s not the case when it comes to employment disputes. A recent development in Brazilian law could perhaps start a new trend.

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  • 07
  • June
  • 2018

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All Arbitration, All the Time: Court Agrees to Hear Case on Whether an Arbitration Clause Allows Class Arbitration When the Clause Is Silent on It

As we discussed in a previous post, the Supreme Court recently ruled that employers may enforce class-waiver arbitration clauses in employment agreements and require an employee to arbitrate his claims in individual, as opposed to collective, arbitration proceedings. Hot on the heels of this recent important decision, the Court agreed to hear a case from the Ninth Circuit which addresses a related issue: whether arbitration clauses that are silent about class arbitration can nevertheless be interpreted to permit class arbitration. This may not seem consequential since many companies moving forward will opt to use class action waivers in employment agreements following the Supreme Court’s recent decision, but standard arbitration clauses are often silent on class arbitration, and many of these clauses may remain in effect for years to come. As such, the Supreme Court’s decision on this issue could have substantial implications for employers that use standard arbitration clauses in employment agreements. 

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  • 21
  • May
  • 2018

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Employers With Class Action Waivers in Arbitration Agreements Vindicated

As we have repeatedly discussed on the Managing the Modern Workplace blog, the fate of employers’ dispute resolution programs, and other arbitration clauses that include class and collective action waivers, has long hung in the balance. Today, in a 5-4 decision authored by Justice Gorsuch, the Court resolved the question of the enforceability of class and collective action waivers in favor of employers.

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"Document, Document, Document" Is Only Half the Battle

As someone who has tried dozens of employment trials — including a very recent one in which a jury found for my client — I can attest to the importance of having good documentation that corroborates the employer’s conversations with employees, especially when the employee subsequently disputes what was said. In my recent trial, for example, we were able to admit dozens of investigation reports that were made close to the time of the events and contradicted the plaintiff’s version of events. The jury was allowed to bring these documents back to the jury room with them and review them in deliberations — a very powerful tool for a jury that is otherwise relying on its collective memory in discussing evidence. Unfortunately, trial lawyers sometimes forget to tell their clients what they need to do in order to ensure that their valuable documentation will be admissible at trial.

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Contributors

Thomas H. Wilson

Thomas H. Wilson Partner

Christopher V. Bacon

Christopher V. Bacon Counsel

Sean Becker

Sean Becker Partner

Stephen M. Jacobson

Stephen M. Jacobson Partner

Martin C. Luff

Martin Luff Counsel

Lawrence S. Elbaum Partner

S. Grace Ho

S. Grace Ho Counsel