Employment Law Stories
Authors:
Estreicher, Samuel / Lester, Gillian
Edition:
1st
Copyright Date:
2007
15 chapters
have results for employment law
Contributors 10 results (showing 5 best matches)
- is Dwight D. Opperman Professor of Law at New York University School of Law, director of its Center for Labor and Employment and co-director of its Opperman Institute of Judicial Administration. He has published several books including casebooks in labor law and employment discrimination and employment law; edited conference volumes on sexual harassment, employment ADR processes, and cross-global human resources; and authored over 100 articles in professional and academic journals. He received his A.B. from Columbia College, his M.S. (Industrial Relations) from Cornell University and his J.D. from Columbia Law School, where he was editor-in-chief of the Columbia Law Review. After clerking for the late Harold Leventhal of the U.S. Court of Appeals for the D.C. Circuit, practicing for a year with a union-side law firm, and then clerking for the late Lewis F. Powell, Jr. of the U.S. Supreme Court, Estreicher joined the NYU faculty in 1978. He is the former Secretary of the Labor and
- is the Allan R. Tessler Dean of the Cornell Law School. After earning an M.A. (in labor economics and industrial organization) a J.D. ( ) and a Ph.D. (in economics) from the University of Michigan, he clerked for the Hon. J. Dickson Phillips of the U.S. Court of Appeals for the Fourth Circuit and for U.S. Supreme Court Associate Justice Sandra Day O’Connor before joining the Cornell faculty in 1983. He is reporter for the American Law Institute’s Restatement of Employment Law project. He is the co-author of
- is Professor of Law at Washington University School of Law in St. Louis. Prior to joining the faculty in 1994, she was a staff attorney at the Employment Law Center/Legal Aid Society of San Francisco, where she litigated cases involving race, sex and disability discrimination, racial and sexual harassment, and unlawful working conditions. She is a graduate of Harvard Law School and Harvard College and served as a clerk to the Honorable Cecil F. Poole on the United States Court of Appeals for the Ninth Circuit. Professor Kim is the co-author of
- is Professor of Law and Director of the Program for Employment and Labor Law Studies at the University of Virginia School of Law. He received a B.A. from Loyola College, an M.Phil. (in economics) from Yale and his J.D. from Yale Law School, where he was articles editor and articles administrator for The Yale Law Journal. He then clerked for Judge Ralph K. Winter Jr. of the U.S. Court of Appeals for the Second Circuit. Verkerke has held a number of fellowships, including the John M. Olin Fellowship in Law, Economics, and Public Policy, and was the recipient of a three-year grant from the University of Virginia’s Academic Enhancement Program to establish the Program for Employment and Labor Law Studies at the Law School. He has visited at the University of Texas School of Law, has participated in an ABA project to draft a new labor code for the transitional government of Afghanistan, and is the author of numerous articles the field of labor and employment law.
- is H. Ross and Helen Workman Professor of Law and Professor of Business at the University of Illinois College of Law and a Research Fellow of the NYU Center for Labor and Employment Law. He received his A.B. from Princeton, his J.D. and M.Pub.Aff. from the University of Texas at Austin and his Ph.D. (in economics) from M.I.T. He has written extensively on both employment at will and Montana’s legal history and is a co-author of
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Chapter 6. The Story of Ingersoll–Rand v. Ciavatta: Employee Inventors in Corporate Research & Development–Reconciling Innovation with Entrepreneurship 46 results (showing 5 best matches)
- Although inventions are a subject of considerable popular interest, the law governing employee inventors is somewhat technical and often falls through the disciplinary gap between employment law and intellectual property law. Employment lawyers often regard invention assignment agreements as being part of the arcane specialty of patent law, and patent or intellectual property lawyers tend to think of the issue as being simply a particular application of the law of employment contracts. As a consequence, the law governing invention assignments is a topic that intellectual property and employment lawyers tend vaguely to gesture at, uniformly acknowledging its importance yet still essentially ignoring it because they assume it falls into someone else’s bailiwick. The fate of the
- The law of employee inventors developed on a parallel track with two other bodies of law governing rights to economically valuable workplace knowledge: the law of trade secrets and the law of restrictive covenants. As explained in chapter six of this book, courts will prevent an employee from using economically valuable knowledge in subsequent or competitive employment when the knowledge qualifies as a trade secret. In addition, an employer may enter into a “restrictive covenant” or “noncompete agreement” with an employee to prevent the employee from engaging in competitive employment. In both the trade secret and the restrictive covenant areas, courts recognize that excessively broad protection for the employer’s desire to prevent former employees from using knowledge gained at work can stifle competition, prevent the employee from finding employment, and retard the economic development and innovation that comes from the diffusion of talent and knowledge throughout the economy. On...
- Over the course of the twentieth century, the law of employee inventors stabilized into three doctrinal categories. First, the default rule was that employees not hired specifically to invent owned the patents to all their inventions, regardless of when or where the employee conceived or developed the invention. Second, if the employee used work time or the employer’s facilities to develop the invention, the law gave the employer a shop right to the invention, but the employee could still license or sell the patent to others or manufacture or market the invention herself. Third, firms and employees could contract around the default rules of employee ownership and shop right in two ways. First, an employer who hired an employee specifically on the understanding that the employee’s job was to invent would be entitled to all patents produced in the scope of the employment contract. In this sense, the employment contract of a hiring to invent was deemed to overcome the default rule....
- One obstacle to the greater salience of the law of ownership of employee inventions is the disparate sources of law governing the issue. Federal law governs patent validity, but ownership of employee inventions is governed exclusively by state law, and the law varies from state to state. As noted above, several states have statutes regulating the enforceability of employment agreements governing employee inventions, while most rely on common law. Some states, like New Jersey in , have explicitly blended the employee invention doctrine with law governing trade secrets and restrictive covenants in a way that creates an overarching body of rules regulating ownership of workplace knowledge. But most states have distinct legal doctrines regulating the different areas. Thus, although in some states the law of invention assignment agreements has certain similarities to the law of trade has not, at least as measured by the number or length of law review or judicial discussions of it.
- A number of questions were explicitly or implicitly left unanswered. First, the nature of the employer’s legally cognizable interest in preventing employees from using workplace knowledge in post-employment inventions was left undefined. Suggesting that the employer’s interest may “narrowly exceed” that which is a trade secret or “confidential information” does little to clarify the situation, inasmuch as the boundaries of trade secret law are somewhat uncertain, and the legal status of “confidential information” that does not qualify as a trade secret is entirely unclear. Although the opinion suggested that a holdover clause would be enforceable to the extent it required assignment of post-employment inventions that use trade secrets (which was not the case with Ciavatta’s stabilizer), it left unclear whether a former employee could patent an invention that uses information that the employer claims as proprietary but does not qualify as a trade secret.
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Chapter 9. The Story of the Montana Wrongful Discharge from Employment Act: A Drama in 5 Acts 83 results (showing 5 best matches)
- The story of Montana’s employment law has five phases. In the first, employment termination claims in Montana were governed by Montana Code § 39–2–503, first enacted in 1895 as part of Montana’s adoption of a comprehensive Civil Code modeled on the French Code Napoleon. For almost a hundred years, Montana employment law was built around a codified at-will rule, similar to other states’ common law at-will rule.
- Montana Employment Law and the 1987 Wrongful Discharge from Employment Act: A New Order Begins
- What can we say about the WDEA in practice? It appears that the statute accomplished what may have been its primary purpose in limiting wrongful discharge actions in Montana. Its damages provisions have thus likely been its most important features. The innovative arbitration features, for example, did not produce an immediate rush to arbitrate employment cases. One reason, according to several Montana attorneys with whom I spoke, is that arbitration is simply too foreign to the Montana bar’s practice. In short, attorneys are unfamiliar with it and so do not use it. This conclusion is also supported by the impact of the WDEA on employment statistics. An analysis of Montana employment found that the passage of the WDEA boosted employment in the state, reversing the impact of the appearance of the common law tort cause of action.
- The WDEA made sweeping changes in Montana law, fundamentally altering the law governing employment termination in four areas. First, it effectively replaced (but did not explicitly repeal) the at-will rule, substituting a requirement of “good cause” for termination of a non-probationary Finally it created an arbitration mechanism for employment disputes and provided incentives to agree to arbitration through a fee-shifting provision for cases in which one party refused an offer of arbitration from the other. Despite its radical changes in employment law, the passage of the WDEA received little attention in the Montana press, however, going almost unmentioned in contemporary press coverage of that legislative session.
- Only one amicus curiae filed a brief, the California Employment Law Counsel (CELC), a sixty-member group of California employers who told the court that their interest was in the WDEA as a model for reform in California as well as in assisting its members with their operations in Montana. The CELC’s argument was aimed primarily at distinguishing the WDEA from . Noting that the legislature has been recognized to have “plenary authority” to regulate employment, the CELC enumerated the many aspects of employment regulated by Montana statutes and concluded that the WDEA simply extended that regulation to termination.
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Chapter 5. The Story of PepsiCo, Inc. v. Redmond: How the Doctrine of Inevitable Disclosure of the Trade Secrets of Marketing Sports Beverages Was Brewed 26 results (showing 5 best matches)
- By and large, employment law accommodated this development. Firms may negotiate a wide range of employment contracts. The law imposes very few implied obligations to supplement those actually negotiated. For example, state courts retreated from earlier suggestions that an executive who had been around for a long time thereby acquired implied contractual rights to job security.
- Pascal adopted a third approach. He concluded, correctly as it turned out, that the federal courts would be interested only in Illinois federal cases. This is not what law students are taught in the first year. was in federal court only because of the diversity of citizenship between the parties, and the only applicable law was the law of Illinois. Yet the Seventh Circuit ultimately paid little attention to defendants’ cases from state court, distinguishing each on its facts and not examining any for general principles of trade secret law. The Seventh Circuit has frequently been criticized for its perfunctory efforts at discerning state law by which it is purportedly bound.
- Quaker was represented by Michael Sheehan of Connelly, Sheehan & Moran in Chicago, its regular employment counsel. Sheehan was only 35 in 1994. He remembers the day vividly. “I thought it would be a calm day for a litigator. I had nothing scheduled in court and thought I would get some work done. Then a fax started coming in with a hearing set for that afternoon.” He walked to Quaker headquarters at 10:30 that morning, then to federal court at 2 that afternoon where he was unable to prevent the issuance of a TRO.
- Still, it is hard to figure out the compelling defense narrative. Sheehan and Lyerla had little expertise in trade secrets litigation—to be fair, not many lawyers did in 1994, including PepsiCo’s. Sheehan and Lyerla approached the case as employment litigation. For example, there was some attempt by Lyerla to portray Redmond as a kind of small fish who was being pushed around.
- lead to the same conclusion: a plaintiff may prove a claim of trade secret misappropriation by demonstrating that a defendant’s new employment will inevitably lead him to rely on the plaintiff’s trade secrets.”
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Chapter 7. The Story of NLRB v. Washington Aluminum: Labor Law as Employment Law 57 results (showing 5 best matches)
- Had the NLRA worked as its New Deal proponents hoped, and promoted the stable and widespread unionization of the economy, “employment law” as we have come to know it would look very different today. Much of it arguably would not exist, for employees would have had recourse through collective bargaining and grievance procedures against many of the abuses of employer power that a great deal of employment law aims to curb. Employees would also have had something that the entire sprawling hodgepodge of employment law does not purport to give them: a collective role in the governance of the workplace and in determining their own terms and conditions of employment. But
- If you put this question to reasonably sophisticated observers of the law—say, upperclass law students—the overwhelming majority will say no. Or so I have found when I have polled students on a variety of discharge scenarios before they begin a course in employment law. Most of those students, while generally aware of the American regime of employment at will, already realize that there are exceptions to at-will employment—exceptions for status-based discrimination and for whistleblower retaliation, for example; they correctly identify many discharges that are unlawful on those grounds either nationwide or in many states. (And, unlike the less sophisticated laypersons surveyed by Professor Pauline Kim in her eye-opening studies, most of my students correctly identify many discharges that are lawful even though they appear unjustified.) ...of the job by walking out on the employer. My more informal inquiries suggest that most lawyers who do not specialize in labor and employment...
- So there is a rather simple explanation for the relative invisibility of the NLRA on the employment law landscape. But that explanation seems to beg another question: Why is this wrongful discharge law virtually alone, and at odds with much of the growing body of wrongful discharge laws and doctrines, in the limited nature of the remedial and procedural arsenal backing it up?
- We might simply conclude that employers and employees do not know much about the law generally. But contrast this state of unconsciousness about the NLRA’s protections with popular knowledge of antidiscrimination law. Employment discrimination on the basis of race and sex, for example, has hardly been obliterated. But it is almost universally and vociferously repudiated by employers, and it is the announced target of employer-created equal employment offices, antiharassment policies, grievance procedures, and other EEO compliance machinery. Antidiscrimination law has produced a rash of other more and less salutary “liability avoidance” measures, ranging from training of supervisors to avoid racially or sexually-charged language, to “sanitizing” of personnel files to remove such language after the fact.
- also encapsulates that part of the labor law that is central to employment law. For the case nicely illustrates the enormity of what the Act does, and what it did in 1935, in the last throes of “liberty of contract,” to employment at will and the employer sovereignty that it embodied. In its heyday, liberty of contract meant, above all, the right to choose whether to contract at all—whether to hire a worker and whether to continue to employ the worker. That is why Justice Harlan, who had dissented from the Court’s 1905 decision in striking down a maximum hours law for bakers, wrote the majority opinion in , wrongful discharge legislation was, it seemed, flatly unconstitutional. That position, had it remained the law, would have doomed not only the NLRA but the Civil Rights Act of 1964 and the entire edifice of wrongful discharge law that has evolved since then.
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Introduction: Nine Employment Law Stories 18 results (showing 5 best matches)
- Law Stories
- The stories behind common law cases, of course, give only a glimpse into the patchwork canvas of employment law. Statutes play a pivotal role in the regulation of the workplace, and some of the most compelling developments in work law took place in the backrooms of the legislative arena. Three of our stories are about statutes, and in one, no case is involved at all—only the life and times of a controversial piece of legislation.
- is conventionally classified as a “labor law” case; it does not appear in most employment law casebooks. Yet Professor Estlund offers it in Chapter 7 as a dramatic illustration of how “labor law” reaches beyond the unionized workplace and beyond the process of union organizing to up-end traditional and powerful assumptions about employer discretion and employment at will within the nonunion workplace. The NLRA is the first and arguably the most farreaching of wrongful discharge laws. It protects a good deal of workplace discourse, protest, and resistance that is unrelated to unions or collective bargaining—from conversations among co-workers about their salaries to the cessation of work in protest of unsatisfactory working conditions.
- : Nine Employment Law Stories
- How did we choose the cases we chose? The cases canvass (albeit imperfectly) the major doctrinal areas of employment law, excluding discrimination and collective bargaining (each the subject of their own
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Chapter 3. The Story of Johnston v. Del Mar: Wrongful Discharge in Violation of Public Policy 43 results (showing 5 best matches)
- Display 3 shows the cumulative effects on employment (as a proportion of the state’s population) when a state first recognizes the tort of wrongful discharge in violation of public policy. The display comes from a recent study by MIT economist David Autor with Yale law professor John Donohue and the present author. It plots the employment-to-population ratios (separately for men and women) in states that adopted the public-policy tort relative to states that did not adopt the tort from the 48 months prior to adoption to the 96 months following adoption. Points above the x-axis would indicate in increase in employment for adopting states, while points below the x-axis indicate a decline in employment for adopting states. As Display 3 reveals, there is no clear pattern either above or below the line. Even after adding other controls, the authors find the public-policy doctrine is associated with a small (0.1 to 0.2 percent) reduction in employment, but the effect is never...
- The Court of Appeals expressly warned that it was not considering a broad whistleblower exception to employment at will. Rather, it limited its ruling to employees who inquired about their own potential criminal liability. We will return to the halting common-law protection of whistleblowers later in this chapter.
- Texas Employment Law Council’s Brief as Amicus Curiae Supporting Petitioner Del Mar Distributing Co., Inc. at 3.
- Brief for Texas Employment Law Council as Amicus Curiae Supporting Petitioner at pp. 13–14, n. 4, Del Mar Distributing Co. v. Johnston, No. C–9282 (Jan. 25, 1990).
- case. By contrast, the Florida courts refused to recognize this tort throughout the 1980s (and even today). Display 2 charts the employment levels of Florida and Texas two years before and two years after the decision. It shows that employment in Florida grew by over 942,000 workers, while employment in Texas grew by only 323,000 workers from a bigger base. The difference between 1983 and 1987 in the differences in employment was 619,400 workers. Arguably, Florida and Texas have otherwise similar employment conditions. Did the decision lead to a slowdown in employment growth in Texas relative to Florida?
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Title Page 3 results
Employment Law Stories 7 results (showing 5 best matches)
- Chapter 7. The Story of NLRB v. Washington Aluminum: Labor Law as Employment Law
- EMPLOYMENT LAW STORIES
- Introduction: Nine Employment Law Stories
- Part I: Common Law of the Employment Relationship
- Chapter 1. The Story of Pugh v. See’s Candies, Inc.: “Implied in Fact” Promises in Employment Contracts
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Chapter 1. The Story of Pugh v. See’s Candies, Inc.: “Implied in Fact” Promises in Employment Contracts 27 results (showing 5 best matches)
- When I was appointed to District One, Division One of the California Court of Appeal in 1979, virtually all of my career had been devoted to the practice, study and teaching of labor law. And that meant labor law in the traditional sense, the legal relationship between employers and unions and between unions and their members. For a union-side labor lawyer, what has come to be called employment law barely existed, except as unions might be involved on one side or the other in discrimination cases under Title VII of the 1964 Civil Rights Act. There were federal wage and hour laws, to be sure, and state laws which regulated some aspects of the employment relationship, but this legislation seldom had significance for union-represented workers, since their collective bargaining agreements were almost always more worker-protective than the statutes.
- As a consequence, I had scarcely any exposure to what little law existed pertaining to job security, or to what we would now call “wrongful termination” law. Union-represented workers were typically covered by agreements that required just cause for discipline, subject to determination by an arbitrator. I recall reading, however, the excellent book by Philip Selznick and Philippe Nonet, two sociologists of the law at U.C. Berkeley, “Law, Society, and Industrial Justice”. The authors traced the development of the law of the employment relationship: from a preindustrial view that the relationship was one of status in which it was understood, on the basis of custom and policy, that employers had certain obligations toward their employees, including some guarantee of view that the employment relationship is contractual in nature and terminable at will.
- See’s brief also argued that since Pugh was free to resign his employment at any time, there was no “mutuality of obligation”, and that any promise See’s might have made to Pugh was not binding for that reason as well. But I recalled even from my law school days that the notion of “mutuality” as a condition to the enforcement of contracts had long since become archaic in contract law generally, and there seemed to be no persuasive reason to resurrect it for employment contracts.
- I found the doctrine puzzling, and discussed it with my class. The exchange of correspondence was arguably ambiguous, and perhaps did not support Ferreyra’s interpretation of the nature of Gallo’s commitment, but that was not the basis for the trial court’s ruling or the decision of the Court of Appeal. The Court of Appeal was certainly correct that under then-prevailing authority “independent” consideration seemed to be required in order to support a promise of “permanent” employment, but why? Was it because the courts did not believe that an employer would make such a promise unless the employer received something more than the employee’s labor? Or because the courts did not trust juries to evaluate the evidence in such a case? Whatever the reason, the requirement was certainly contrary to generally applicable contract law principles. It constituted, in effect, a special rule applicable to the employment relationship, and one which operated to the detriment of employment security....
- wrongful termination in violation of express and implied promises of continued employment, and in violation of public policy. Plaintiff also named as a defendant Bakers’ Local No. 125, a labor union which represented See’s workers, it being part of Pugh’s theory that the union had conspired to have him terminated. Pugh was represented by a San Francisco sole practitioner, Joseph P. Stretch, and See’s by Donald F. Farbstein of the San Mateo firm Farbstein, Brown & Pillsbury. Farbstein was an insurance defense lawyer, with no background in employment. The union was represented by Phillip J. Smith of the Oakland firm Smith, Clancy, Wright & Laws.
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Chapter 2. The Story of Woolley v. Hoffmann–La Roche: Finding a Way to Enforce Employee Handbook Promises 61 results (showing 5 best matches)
- to replace the “grudging” and reluctant approach of earlier case law with the more modern concept of protecting employees’ “reasonable expectations”—a transition that produced our contemporary understanding of employment contract law. Plaintiff’s counsel often struggled to express this theme clearly. Whatever their failings, however, Woolley’s attorneys earned their fee by relentlessly focusing the New Jersey Supreme Court’s attention on . Extensive quotations from both cases found their way directly from plaintiff’s briefs into the court’s opinion. Although those briefs were sometimes inartfully written, Woolley’s counsel cleverly encouraged the sort of jurisdictional cross-pollination that we so often see in this and other areas of employment law.
- Despite these historical cavils, no one can seriously doubt that, during the heyday of the employment-at-will doctrine, courts routinely ignored or discounted evidence of employer statements that employees reasonably might have understood to guarantee job security. New Jersey case law conformed closely to this pattern. In for example, the plaintiff was injured at work and agreed not to sue his employer in exchange for a written promise of lifetime employment. A New Jersey appellate court held that the writing was “no more than a friendly assurance of employment and … not sufficiently definite to make an enforceable contract.” In ...alleged agreement failed to specify a salary term or indicate how the parties intended to handle different types of disability and “other possible future contingencies.” In these cases, courts consistently imposed special requirements for enforcing employer promises of job security and exhibited the broad hostility to such claims that pervaded employment...
- Sometime after his formal termination in July 1978, Woolley contacted Haynes & Donnelly, a Detroit law firm that had developed a national reputation for plaintiff-side employment litigation. . However, the involvement of a Michigan law firm and Wahl’s prescient hunch about New Jersey’s willingness to embrace these arguments show that the jurisdictional cross-pollination in this area of employment law goes much deeper than is apparent from the text of the court’s opinion alone.
- We find nothing in the manual expressly providing for a fixed term of employment, nor is there language from which a contract to that effect could be inferred…. [T]he manual … was only a unilateral expression of company policies and procedures. Its terms were not bargained for by the parties and any benefits conferred by it were mere gratuities. Certainly, no meeting of the minds was evidenced by the defendant’s unilateral act of publishing company policy…. [A]n agreement to give permanent employment simply means to give a steady job some permanence, as distinguished from a temporary job or temporary employment.
- The Contract of Employment and the Rights of Individual Employees: Fair Representation and Employment at Will
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Chapter 4. The Story of Luck v. Southern Pacific Transportation Co.: The Struggle to Protect Employee Privacy 44 results (showing 5 best matches)
- Beliefs about the nature of the employment relationship greatly influence views about the appropriate scope of the public policy exception—and whether it should apply in situations like Barbara Luck’s. For those who see employment primarily as a locus of exchange—labor for wages—the relationship between employer and employee is fundamentally a matter of contract. can be answered by looking to their agreement. If an employee has consented to undergo urinalysis drug testing—or vehicle searches or video surveillance—as a condition of employment, she cannot later complain about these practices. If the employee refuses to consent, no agreement is reached and the at-will employment simply terminates. On this view, the law should not step in to interfere with the parties’ agreement absent some fraud or coercion. And the public policy exception should be narrowly cabined to reach only those situations in which the employer’s decision to discharge has some negative effect on third parties—an...
- while they were staff attorneys at the American Civil Liberties Union of Northern California and the Employment Law Center of the Legal Aid Society of San Francisco, respectively. I am grateful to all of these individuals for taking the time to speak with me about the case. In the interests of full disclosure, I report that I was employed as a staff attorney at the Employment Law Center of the Legal Aid Society of San Francisco in the past, but did not participate in the
- The same lawyers who had tried the case for the employer—Robert Bogason of SP and Wayne Bolio of the law firm McLaughlin & Irvin—represented it on appeal. Luck’s attorneys, who primarily focused on trial work, brought in Ellen Lake, an appellate lawyer, to handle the appeal. A central challenge facing both sides was how to frame the debate over privacy rights and drug testing in the employment context.
- Privacy in Employment Law
- One route available to discharged employees was to argue that they were not in fact at-will employees, because they had agreed to a different arrangement. These contract-based claims took several forms. Most straightforward were cases in which an employee could point to an express agreement—written or oral—that the employment would continue for a specified period of time, or that the employer’s right to discharge holding that an implied promise to discharge only for good cause could be based on factors such as the duration of employment, consistent commendations and promotions, lack of direct criticism of the employee’s work, assurances of job security, and the personnel policies and practices of the employer. Finally, discharged employees had begun to assert claims based on the implied covenant of good faith and fair dealing. The duty to act in good faith was implied as a matter of law in all contracts, and had been used by courts to protect the reasonable expectations of parties...
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Chapter 8. The Story of Gilmer v. Interstate/Johnson Lane Corp.: The Emergence of Employment Arbitration 54 results (showing 5 best matches)
- that employees could enter into binding predispute arbitration agreements encompassing claims they have against employers under the Age Discrimination in Employment Act of 1967 (ADEA) and by extension other federal and state employment laws. Although the ADEA and other federal statutes, viewed on their own terms, contemplate actions in court, the Federal Arbitration Act of 1925 (FAA), as interpreted by the Court, requires the enforcement of arbitration agreements covering statutory as well as common law claims. The ruling did not come out of the blue. It had been prefigured by a series of decisions broadening the reach of the FAA, including the Court’s 1987 involved a state law claim, the plaintiff community might still have harbored the hope that the Court would rule differently when confronted with a claim arising under one of the hallmark federal anti-discrimination laws.
- A third open question concerns the role of generally applicable state law in voiding agreements for unconscionability or duress. It is clear from decisions like that state laws that subject arbitration agreements to special requirements are preempted by the FAA. Under § 2 of the FAA, arbitration agreements must stand on the same footing as other agreements. However, they do not enjoy any different status than other agreements; they are “valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” Some courts, like the California Supreme Court, have seized upon this language to develop an active unconscionability jurisprudence to curb perceived employer overreaching in employment arbitration agreements.
- Any controversy between a registered representative and any member or member organization arising out of the employment or termination of employment of such registered representative by and with such member or member organization shall be settled by arbitration, at the instance of any such party, in accordance with the arbitration procedure prescribed elsewhere in these rules.
- (over Judge Edward Becker’s strong dissent), the Supreme Court granted Gilmer’s petition for writ of certiorari on October 1, 1990. The grant was expressly limited to the first question in the petition: “Are claims brought pursuant to the Age Discrimination in Employment Act … subject to compulsory arbitration?” e briefs: The organizations supporting Gilmer were the AFL–CIO, the American Associations of Retired Persons, and the Lawyers’ Committee for Civil Rights Under Law; those supporting Interstate were the Center for Public Resources, the U.S. Chamber of Commerce, the Equal Employment Advisory Council, and the Securities Industry Association.
- dashed those hopes. However, the Court did not decide the meaning of the exclusion in § 1 of the FAA for “contracts of employment of seamen, railroad employees or any other class of workers engaged in , the issue had not been raised below, identified among the questions presented, or even briefed by Gilmer’s counsel. Justice White, writing for a 7–2 majority, was able to say that the § 1 exclusionary clause did not apply because Gilmer’s arbitration agreement was part of a registration process with the New York Stock Exchange (NYSE), rather than a contract of employment directly entered into with his former employer. Ten years later, in , reading the exclusion to “exempt[] from the FAA only contracts of employment of transportation workers.” ushered in a new era of arbitration of employment disputes.
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- This publication was created to provide you with accurate and authoritative information concerning the subject matter covered; however, this publication was not necessarily prepared by persons licensed to practice law in a particular jurisdiction. The publisher is not engaged in rendering legal or other professional advice and this publication is not a substitute for the advice of an attorney. If you require legal or other expert advice, you should seek the services of a competent attorney or other professional.
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- Publication Date: January 17th, 2007
- ISBN: 9781599411187
- Subject: Employment Law
- Series: Law Stories
- Type: Overviews
- Description: Employment law is emerging as an important practice area. This title provides behind-the-scenes descriptions of the landmark cases; the litigants, the lawyers, the strategy; that helped shape this growing field. This account of emerging law is designed to help the student understand that, well before appellate judges are involved, the basic narrative and the doctrinal and policy potential of the case have been set by the decisions of litigants and their representatives. Several chapters are also devoted to the story behind some of the principal statutes in the area.
