As we previously noted, the Pennsylvania General Assembly passed a law in November that amends the Pennsylvania Banking Code to permit the use of payroll debit cards, with certain conditions.  The law brought welcome clarity to this murky issue by authorizing formally the payment of employee wages via debit card and setting forth the requirements that need to be met to do so.  We discussed these requirements in our prior post on this topic.

This law is set to take effect on May 4.  Employers who wish to consider the payroll debit card option for paying employees (or who already are doing so) should review the specifics of the law to ensure they are in compliance when this law takes effect.

Workplace rights for LGBT individuals has been a rapidly developing area of the law.  A little over two years ago, former President Obama signed an executive order prohibiting federal contractors from discriminating against employees on the basis of their sexual orientation or gender identity.  The Office of Federal Contract Compliance Programs followed suit by issuing regulations protecting the rights of LGBT workers employed by federal contractors and subcontractors.  Then, the Equal Employment Opportunity Commission published guidance suggesting that the Agency considers sexual orientation and gender identity to be protected by Title VII of the Civil Rights Act of 1964.  Despite these developments, no federal appellate court had ever ruled that Title VII protects workers from discrimination on the basis of sexual orientation.  That changed earlier this week.

In a groundbreaking 8-3 decision, the U.S. Court of Appeals for the Seventh Circuit (having jurisdiction in Illinois, Indiana, and Wisconsin), ruled that sexual orientation is a protected trait under Title VII and that employers may not discriminate against employees on that basis.  The case, Hively v. Ivy Tech Community College of Indiana, involved an openly lesbian professor who had worked for the college as an adjunct staff member for over fourteen years.  She applied for six different full-time jobs during her tenure and was rejected for each of them.  Then, the college failed to renew her adjunct contract in 2014.  She filed a Charge of Discrimination with the EEOC alleging that she was discriminated against on the basis of her sexual orientation.

The district court dismissed her case on the basis that sexual orientation was not recognized as a protected trait under Title VII.  On appeal, the Seventh Circuit reversed.  It held that sexual orientation was a protected characteristic because, in essence, actions taken on the basis of sexual orientation are a “subset of actions taken on the basis of sex,” which is protected by Title VII.  The Court reasoned that sexual orientation discrimination claims are “no different from the claims brought by women who were rejected for jobs in traditionally male workplaces, such as fire departments, construction, and policing. The employers in those cases were setting the boundaries of what jobs or behaviors they found acceptable for a woman (or in some cases, for a man).”

The Seventh Circuit’s ruling is not binding precedent on Pennsylvania employers.  However, as we reported last year, at least one federal district court in the Commonwealth considers sexual orientation to be a protected trait under Title VII.

The Seventh Circuit’s ruling may ultimately prove to have a much broader impact.  The Hively decision now means that circuit courts are officially split on the issue of whether Title VII protections include sexual orientation (last month, the Eleventh Circuit held that sexual orientation and gender identity are not protected under the statute).  When federal circuit courts provide conflicting rulings on the same legal question, the Supreme Court of the United States is more likely to issue its own ruling on the subject in order to ensure consistent application of the law.

We will continue to monitor any future developments on the subject.  As always, we’ll report any updates right here.

For much of 2016, employers and HR professionals were focused on preparing for the new Fair Labor Standards Act white-collar overtime exemption regulations.  The Department of Labor issued the final regulations on May 18, 2016, with an effective date of December 1, 2016.

As you may remember, the new regulations more than doubled the minimum weekly salary requirement for most white-collar overtime exemptions from $455 to $913.  The new regulations contained a number of additional provisions, the vast majority of which were not viewed favorably by employers.

And then, right before Thanksgiving, everything came to a screeching halt.  A federal district court issued on November 22, 2016, a nationwide preliminary injunction blocking the new FLSA white-collar overtime exemption regulations from taking effect on December 1.  Few anticipated the issuance of an injunction blocking the regulations, much less one a mere eight days before the regulations were set to take effect.  Happy Thanksgiving, indeed.

You may have noticed that we have not provided an update on this issue on this blog since the issuance of the injunction in November 2016.  That is because, frankly, not much of note has happened, either in the litigation in which the injunction was issued or regarding the issue in general.

As expected, the Department of Labor filed an appeal of the preliminary injunction on December 1, 2016.  The DOL initially sought to fast-track the appeal, asking the Fifth Circuit Court of Appeals for an expedited briefing schedule.  The motivation for this strategy was obvious.  The DOL’s leadership was set to change with the inauguration of Donald Trump in January, and the best hope for the new regulations was to have the injunction overturned before this change in leadership could affect the DOL’s litigation strategy.

The DOL’s strategy initially was successful, with the Fifth Circuit agreeing to an expedited briefing schedule, with all briefs regarding the appeal set to be filed by February 7, 2017.  However, on January 25, 2017 (i.e., shortly after the Trump administration took office), the DOL asked the Fifth Circuit for an extension of time to file its reply brief “to allow incoming leadership personnel adequate time to consider the issues.”  The Fifth Circuit ultimately agreed to extend the deadline for the DOL to file its reply brief until May 1, 2017.

Meanwhile, the federal district court that issued the preliminary injunction in November is still considering a summary judgment motion that could result in a final order being entered in that case.  Also, a motion filed by the Texas AFL-CIO in December 2016 to intervene as another defendant in the case also remains pending before that court.  The AFL-CIO sought to intervene because of its fear that the DOL’s new leadership will decide to cease defending the challenged regulations.

Time is not on the side of the currently enjoined FLSA overtime exemption regulations.  As the appeal of the injunction drags on into the spring, the likelihood of the Trump administration DOL withdrawing the appeal and abandoning the fight to defend the regulations grows.  If it does so, the injunction likely will become permanent, placing the final nail in the coffin of the controversial regulations.

So, as we have been saying for months, stay tuned.

In City of Allentown, the Pennsylvania Supreme Court ordered the City to implement an interest arbitration award which contained (among modifications to wages, sick leave, vacation, pension and overtime) a minimum staffing requirement of 25 firefighters per shift.

As every public sector employer and practitioner knows, a municipality has no obligation to bargain with a union representing police officers or firefighters over inherent managerial policy (overall budget, standards of service, organizational structure, selection and direction of employees).  I mean, it says so, right there in the Pennsylvania Labor Relations Act!  The PLRA is forever linked to Act 111, which makes it mandatory for municipalities to bargain with police and fire unions over the terms and conditions of employment (compensation, hours, working conditions, other benefits).

Act 111 also provides the mechanism for municipalities and unions to submit their disputes to binding interest arbitration, but only those disputes which concern mandatory subjects of bargaining.  An arbitration panel that issues an award on a topic that is a managerial prerogative exceeds its powers.

But, what happens when a dispute concerns both a mandatory subject (i.e. it is rationally related to the terms and conditions of employment) and a managerial policy (i.e., budget or direction of personnel)?  Well, then the question is whether bargaining with the union over the issue would unduly infringe on the municipality’s essential managerial responsibilities.  That is the analysis that the Supreme Court applied to the minimum staffing dispute facing the City of Allentown and the International Association of Fire Fighters Local 302.

Prior case law left us with this:  the total number of firefighters that a municipality employs is a matter of managerial prerogative and a municipality need not bargain over that number.  An arbitration award that mandates a total complement number is illegal.  Prior case law also left us with this:  the number of firefighters actually assigned to a particular station or to a piece of fire equipment is a mandatory subject of bargaining, as it is rationally related to the safety of firefighters, i.e. a working condition.  So, an arbitration award that mandates the minimum crew on each rig is perfectly legal.

Confused?  Citing safety concerns and relying heavily on arbitration testimony that increased staffing leads to a safer working environment and a decrease in injuries and physical stress, the Court concluded that minimum staffing had a “direct and significant impact on firefighter health and safety” and did not unduly infringe on the City’s financial burdens.

More directly, the Court (currently comprised of 1 elected Republican, 5 elected Democrats and 1 Republican appointed by a Democrat Governor) did little more than pay lip service to how minimum staffing leads to increased overtime, or how increased overtime leads to increased pension expenses, or how increased pension expenses lead to unfunded pension liabilities, or how unfunded pension liabilities are crippling so many municipalities across the Commonwealth.

So what now? It appears that the overall complement is still a decision left for the public employer; however, once that number is set, then the parties must negotiate regarding the number of employees assigned to each shift.  Certainly, this leaves many questions unanswered.  And certainly, the impact on municipal budgets, already strained and struggling, will be significant.

As a general rule, an employee who is injured while commuting to or from work is not entitled to workers’ compensation benefits, as the injuries are not deemed to be “in the course and scope of employment” by virtue of the longstanding “going and coming rule.”  There are exceptions to the rule, including: (1) situations where there is no fixed place of employment and the employee is therefore deemed to be a “traveling,” as opposed to “stationary” employee; (2) the employee is on a special assignment for the employer; (3) the employment contract includes transportation to and from work; or (4) special circumstances exist, such that the employee was furthering the interests of the employer when injured.

In an interesting recent case, the Commonwealth Court awarded compensation under the special circumstances exception, despite the fact that Claimant was commuting to work at the time of his motor vehicle accident.

The employee, Miller, was a salaried director of maintenance services, exempt from the overtime requirements of the Fair Labor Standards Act. His regular work hours were from 7:00 a.m. to 3:30 p.m., Monday through Friday.  The employer maintained a four building campus as a facility for senior residents.  The campus had a system of security cameras, whose maintenance was an important priority for the employer.

Miller testified that in addition to his regular hours, he would be called in while off-site two to three times monthly.  In such instances, he received “comp time,” in lieu of additional pay.  The comp time accrued from the time he answered the phone, until he arrived back at home.  On the morning in question, Miller was “feeling very poor and weak.”  He stayed home past his usual 7:00 a.m. start time, with the intention of taking a sick day.  However, the employer called and requested that he stop in to reset the security cameras, after which he could return home for the rest of the day.  En route to the facility, Miller became nauseous and veered off the road, hitting a telephone pole.  He sustained multiple injuries, including a broken eye socket, broken pelvis, ruptured bladder and multiple scars and disfigurements.

The key issue before the WC Judge was whether Miller was commuting to a fixed place of employment, such that the “going and coming rule” barred his claim, or whether special circumstances existed, such that an exception to the rule applied.

Since “but for” the security camera emergency, Miller would not have made the trip to work, the Judge, and subsequently the Commonwealth Court, concluded that this factor brought the case within the “special circumstances” exception to the going and coming rule, and awarded benefits.

The key takeaway is that commuting cases are often fact sensitive and need to be analyzed carefully, to determine whether workers’ compensation benefits are appropriate.  For example, construction workers who might at first glance appear to be “traveling” as opposed to “stationary” employees, are frequently deemed to be “stationary,” if they are working at only one job site at a time.  As such, the “going and coming” rule might preclude compensation in such cases, absent special circumstances.

Please contact Paul Clouser, Denise Elliott or Micah Saul, if you have questions about situations in which your employees may or may not be deemed to be “in the course and scope” of their employment, pursuant to the Pennsylvania Workers’ Compensation Act.

The use of temporary employees provided by agencies that supply laborers, secretaries, nurses or other skilled or unskilled workers to the public and private sector is increasing. Employers who use these temporary agency workers’ must be wary of the relationships created by the use of the temporary agency workers. Are the temporary workers “employed” by the agency, the borrowing employer, or both, for purposes of the Pennsylvania Workers’ Compensation Act (the “Act”)?  The answer will determine which entity or entities may claim immunity from a common law action, under the exclusive remedy provisions of the Act.

The critical test for determining whether a worker furnished by one entity to another is “employed” by the latter, is whether the worker is under the latter’s right of control with respect to both the work performed and the manner in which the work is performed.  For example, suppose a municipal township needs a temporary worker to ride on the back of a municipal trash truck.  After receiving only minimal instruction, the worker falls from the moving truck on his first day of work and dies ten (10) months later.  Suppose the agency, Labor Ready, pays $770,000 in workers’ compensation benefits.  A civil suit is then initiated by the decedent’s estate against both Labor Ready and the Township.  Does the decedent’s estate have a viable civil claim against either entity? Under this fact pattern, the trial judge dismissed, on summary judgment, both Labor Ready and Rye Township, finding that both entities were “employers” entitled to protection under the immunity provisions of the Act.  The ruling was affirmed by the Commonwealth Court on appeal.  Nagle v. Labor Ready and Rye Township (Pa. Cmwlth. 2016).  Similar results have been reached in volunteer fire fighter liability cases, where both the volunteer fire company and the sponsoring township enjoy immunity.  Indeed the “borrowed employee” doctrine provides broad immunity in both the public and private sectors, at least where the borrowing employer exerts the requisite degree of control over the borrowed employee, (See, e.g., Hendershot v. Emmeci Northampton County 2016). A temporary agency supplied a machine operator to its manufacturing client and the agency employee sustained serious injuries while cleaning the machine.

Nevertheless, despite broad interpretation on the “borrowed employee” doctrine, employers have been found to be liable for damages beyond workers’ compensation, in circumstances where: (a) the requisite degree of control does not exist (i.e. a company leases a piece of equipment with an operator and the operator is then injured on the company’s premises) or (b) the borrowing employer forfeits its immunity by filing an Answer to the workers’ compensation claim petition denying that it is the employer, and alleging that the temporary agency is solely responsible.  Black v. Labor Ready (Pa. Super. 2010).

Employers should be sensitive to the range of potential outcomes when staffing positions with “borrowed employees,” and should review any temporary agency agreements to insure the broadest possible immunity from suit, along with proper indemnification language, with respect to agency employees who are hired into temporary positions or assignments.

Please contact a member of our Labor and Employment Group for specific legal analysis of temporary employment arrangements at your facility.

As if Counties could forget that Court employees are just a little different, the Commonwealth Court of Pennsylvania sent us another reminder when the Court held that the Pennsylvania Whistleblower Law does not apply to judicial employees.

Gregory Thomas was a Juvenile Probation Officer serving with the Washington County Court of Common Pleas until October 2014, at which time he was allegedly forced to quit. Prior to his resignation, Thomas had been a participant in an investigation regarding the misappropriation of funds by the Juvenile Probation Office. During the investigation, it was revealed that the Chief of the Juvenile Probation Office had directed Thomas to email the County’s purchasing office in July 2014 to state that a mixed martial arts training session had taken place on June 6 and 7 in partial satisfaction of the state’s 40-hour annual training requirement. The email sought, and was granted, funding for the training. No such training actually occurred, and Thomas confirmed to the investigating detectives that he had not attended this training; he alleges that he had been told by the Chief Probation Officer to tell the detectives otherwise.

The day after his interview with the detectives, Thomas was notified that he needed to resign or he would be fired for reasons not related to the investigation. Thomas brought suit against the County, Court Administration, and others alleging that he reported wrongdoing and misappropriation of funds when he spoke to the detectives, and therefore his forced resignation violated the Pennsylvania Whistleblower Law. The Defendants contended that the Whistleblower Law did not apply to judicial employees because doing so would violate the separation of powers doctrine. The trial Court granted the Defendants’ Preliminary Objections and entered judgment in their favor, finding that judicial employees are not subject to the Whistleblower Law.

In reviewing the case, the Commonwealth Court noted that the statute itself does not reference the Judiciary in the definition of “employer” or “public body,” and that prior case law established that the Legislature did not intend to include the Judiciary therein or it would violate their constitutional authority to hire, fire and supervise their employees. As such, the only way that the statute could apply was if the Court voluntarily waived sovereign immunity. Although Thomas argued that the Court had done so because the Code of Conduct for Judicial employees issued by the Administrative Offices of the Pennsylvania Courts specifically referenced the Pennsylvania Whistleblower Law, the Court disagreed that “the mere description of the Whistleblower Law in a Note…demonstrates the Court’s intent to bring the Judiciary under the scope of that Law.”

In particular, the Court noted that the reference to the Whistleblower Law was found in that section of the Code of Conduct related to the Duty to Report, which requires employees to report to their immediate supervisor any attempt to induce them to violate the Code of Conduct, and that the reference was a mere description of the Law. Nothing in the reference specifically states that the Law is applicable to the Judiciary, or otherwise indicates the Court’s intent to make the Law applicable. The Commonwealth Court stated that, considering the “vigilance” and “care” that the Court takes to protect its independence and the separation of powers, more than a general description of a legislative enactment would be required to demonstrate an intent to make the Law applicable to it. Because the Law did not apply to the Courts, the Preliminary Objections were properly sustained and judgement entered for the Defendants.

The Thomas v. Grimm case should serve as a reminder that there are special considerations when dealing with HR issues involving Court employees – and the rules for hiring, firing and supervision may be slightly different. A good County HR Department must be careful, therefore, not to overstate the rights and protections of Court employees while also advocating for the County’s position on an employment decision and respecting the separate role of the Courts. Aside from the specific reminder about the unique Court-County relationship, Thomas should also serve as a reminder to all public sector employers of the unique position they and their employees are in when it comes to the employment relationship, where they must be careful to navigate their role as a public service entity providing statutory and constitutional resources to its constituents while also respecting the constitutional and other legal rights of employees.

In 2015, we discussed the new joint-employer standard that was articulated by the National Labor Relations Board in Browning-Ferris Industries of California, Inc.  As a reminder, the NLRB held that a joint-employer relationship may be found if two or more entities “are both employers within the meaning of common law, and if they share or co-determine those matters governing the essential terms and conditions of employment,” such as wages, hours, work assignments, and control over the number of workers and scheduling.  The Board further found that a joint employer is not required to exercise its authority to control terms and conditions of employment, and recognized that control may be “reserved, direct and indirect.”

The effect of this new, employee-friendly standard was a broadening of the Board’s criteria used to consider whether a joint-employer relationship exists.  In other words, it became much more likely that companies that use contract or contingent labor could face liability as the joint employer of those workers.  The story doesn’t end there, however.

The Browning-Ferris decision was appealed, and the appeal is currently pending before the United States Court of Appeals for the D.C. Circuit.  If the court’s remarks during oral arguments that were recently held are any indication of the fate of the new joint employer standard, employers have reason for cautious optimism.

The D.C. Circuit’s panel of judges described the Board’s new test as “unworkable,” with one jurist remarking that the NLRB had “dropped the ball” in its 2015 decision.  She openly questioned whether the Board was capable of policing the line between genuine joint employment and contractor relationships.  Other members of the panel criticized the new test as “unclear.”

While there is no guarantee that the D.C. Circuit will overturn the NLRB’s decision in Browning-Ferris, early signs certainly seem to indicate that such an outcome is quite possible.  We will continue to monitor the status of this case and will report any further developments right here on our blog.  In the meantime, the NLRB’s decision still stands and employers should continue to operate accordingly.

In the Third Circuit, an employer’s honest belief that an employee committed misconduct can now serve as a defense to a retaliation claim under the FMLA.  With the recent decision in Capps v. Mondelez Global, LLC (found here) the Third Circuit joins the Seventh, Eighth and Tenth Circuits in providing such a defense.

In the Capps case, Mondelez (the employer) fired Fredrick Capps (a longtime employee) for what Mondelez believed to be dishonest use of intermittent FMLA leave.  During the time of his employment, Capps suffered from a medical condition that required him to undergo bilateral hip replacement in 2003.  Thereafter, he experienced flare-ups that caused him severe pain, which sometimes lasted for days or weeks at a time. As a result of his condition, Capps requested intermittent FMLA leave to cover his periodic time off work.  Because of his ongoing condition, Capps was recertified for intermittent FMLA leave every six months from 2003 to the end of his employment.

On February 14, 2013, Capps reported that he would not be in to work because he was experiencing pain caused by a flare-up of his condition.  Later that same day, Capps drove to a local pub, where he got something to eat and also had a few beers and shots of alcohol with his friends.  About three hours later, Capps attempted to drive home, but was arrested for Driving Under the Influence of Alcohol (“DUI”) and spent the night in jail.  After being released from jail the next morning, Capps again called off work using intermittent FMLA leave because he said he was experiencing leg pain from his condition.

When Capps returned to work, he did not report his DUI arrest.  However, over the next several months he called off work numerous times and requested intermittent FMLA leave for his condition.  Interestingly enough, during this same time period, Capps was required to attend court hearings and other appointments related to his DUI charge.

On August 7, 2013, Capps pled guilty to the DUI charge and immediately served 72 hours in jail.  When the employer became aware of Capps’ conviction early in 2014, an investigation commenced looking into Capps’ attendance from the time of his DUI arrest to his guilty plea.  This investigation uncovered that Capps’ arrest date and several subsequent court dates corresponded with days that Capps had also used intermittent FMLA leave.  After further investigation, including discussions with Capps himself, it became clear that the documentation Capps submitted did not support his need for FMLA leave on the days that he also appeared in court.

Subsequently, Capps was discharged based on his violation of the company’s Dishonest Acts Policy and misuse of FMLA leave. The termination letter sent to Capps stated: “You claimed to be out due to [ ] FMLA related issues on multiple dates. The documentation you produced does not support your claim of [ ] FMLA related absences.”  After his termination, Capps filed suit claiming, among other things, that the employer retaliated against him for exercising his rights under the FMLA.

After having his FMLA retaliation claim dismissed on summary judgment, Capps’ argued on appeal that the District Court improperly dismissed his claim because the employer was mistaken in its belief that Capps misused his FMLA leave or was otherwise dishonest. However, the Third Circuit affirmed the dismissal of Capp’s FMLA retaliation claim emphasizing that an FMLA retaliation claim requires proof of an employer’s retaliatory intent.  In other words, Capps could not show that the employer’s reasonable belief that he was dishonest and misused his FMLA leave was a pretext for retaliation.

While employers should always proceed with caution before terminating an employee around the time he or she requests, takes, or returns from FMLA leave; the Third Circuit’s adoption of the honest belief defense provides a significant means for employers to defend against FMLA retaliation claims. More specifically, employers that discharge an employee based upon an honest belief that the employee is abusing FMLA leave may now be more likely to prevail on a motion for summary judgement.

To be clear, this case is not a get out of jail free card for employers.  Before the decision is made to terminate, employers must be sure that there is supporting evidence of the employer’s honest belief. In the Capps case, this took the form of a thorough investigation of the employee’s absences along with an opportunity for the employee to explain and support his actions.  Yet, when an employer has supporting evidence and reasonably believes that an employee abused FMLA leave or was otherwise dishonest about the need for such leave, this honest belief will serve as the employer’s defense to a FMLA retaliation claim.

In 2010, two employees filed a claim against their former employer, Robert Half International, Inc., alleging that it violated the Fair Labor Standards Act (“FLSA”). In addition to individual claims, the plaintiffs brought a collective action on behalf of all other similarly situated employees. The plaintiffs, however, had signed employment agreements containing arbitration clauses, which generally required that any dispute arising out of their employment be submitted to arbitration. It was silent as to class-wide claims.

The employer filed a motion to compel the employees to resolve their claims through arbitration on an individualized basis. The court ordered the employees to submit their claims to arbitration but left for the arbitrator to decide whether the claims could proceed on a class basis. The arbitrator subsequently ruled that class arbitration was permitted under the agreements. The employer appealed and argued that the question of whether the employees could submit claims to arbitration on a class-wide basis is one to be decided by the courts, not an arbitrator.

The First Shoe

The Third Circuit agreed. The court first explained that it is generally the province of the courts to resolve “questions of arbitrability.” That is, courts have narrow authority to decide whether or not an arbitration clause applies to particular claims and/or particular parties. On the other hand, arbitrators decide all issues they have been authorized by the parties to resolve. This includes procedural questions, and in traditional litigation, questions of class are procedural in nature. So, in this case, the court was presented with the following question: when an arbitration clause is silent as to arbitration on a class basis, is the permissibility of class arbitration a “question of arbitrability” to be decided by the court, or is it a procedural question to be decided by an arbitrator?

In a precedential opinion issued in 2014, the Third Circuit held that it was a question of arbitrability reserved for the court, because it was an issue of whether the clause applies to particular claims and/or parties. With this ruling, the Third Circuit then remanded the case to the district court to determine whether the employment agreements authorized class arbitration. On remand, finding no explicit language in the arbitration clauses, and finding no other evidence to the contrary, the district court found that class arbitration was not permitted under the agreement. The employees appealed.

The Other Shoe (sort of)

In a non-binding decision issued at the end of January, the Third Circuit agreed that class arbitration was not permitted. First, the court recognized that “a party may only be compelled to submit to class arbitration if there is a contractual basis for concluding that the party agreed to do so.” Stolt-Nielsen S.A. v. AnimalFeeds Int’l, Inc., 559 U.S. 662, 684 (2010). To determine whether the parties agreed to class arbitration in this case, the court first looked for explicit language of authorization, noting that under Third Circuit precedent, “silence regarding class arbitrability generally indicates a prohibition.” Quillion v. Tenet HealthSystems Phila., Inc., 673 F.3d 221, 228 (3d Cir. 2012). It found no explicit language. Despite this finding and its precedent concerning the silence of class arbitration, the court did not stop there. It went on to look for implicit authorization elsewhere in the employment agreement. It again found nothing and affirmed that the agreement did not authorize class-wide arbitration.

While this ruling resolves this case and gives guidance moving forward, it does not definitively answer whether the absence of explicit language precludes class arbitration. To the contrary, the court’s analysis suggests that class arbitration could be inferred from other language in the employment agreement. So, going forward, to avoid a court making such an inference – one contrary to your true intent – inclusion of explicit language prohibiting class arbitration remains the best policy. However, you must be aware that the National Labor Relations Board takes the position that explicit prohibitions of class arbitration violate the National Labor Relations Act. Three courts of appeals, among other courts, have disagreed and overturned the Board’s position. Stay tuned, as the Supreme Court of the United States is set to resolve this question later this year.