Employment attorney Curt Surls discusses the varying state responses to U.S. Supreme Court in Epic Systems v. Lewis




Experienced Employment attorney Curt Surls discusses the varying state responses to U.S. Supreme Court in Epic Systems v. Lewis

              Several states are considering responses to Supreme Court’s recent decision in Epic System that held that individual arbitration clauses in employment contract preempts class action lawsuit.  One such response is from Governor Jay Inslee of Washington, issuing Executive Order 18-03 in June of 2018 that directly mentions the Epic System decision in the preamble.  Specifically, the order states “WHEREAS, the United States Supreme Court, in its recent Epic Systems Corp. v. Lewis decision, held that if employees sign an arbitration agreement requiring individual arbitration proceedings as a condition of employment, then those agreements preclude employees from pursuing a class or collective action against their employer to resolve disputes; and WHEREAS, when employers require workers to accept an arbitration clause as a condition of employment they deny workers the opportunity to seek redress for employment grievances through collective or class action in court or in arbitration, and workers are stripped of a powerful tool to level the historical imbalance between employers and employees; and WHEREAS, the Epic Systems Corp. v. Lewis decision will inevitably result in an increased difficulty in holding employers accountable for widespread practices that harm workers . . . .”  The order provides that “[t]o the extent permissible under state and federal law, when making purchasing and other procurement decisions, all state executive and small cabinet agencies shall seek to contract with qualified entities and business owners that can demonstrate or will certify that their employees are not required to sign, as a condition of employment, mandatory individual arbitration clauses and class or collective action waivers.”  Although the order would only cover purchases and procurement by the executive branch of the state of Washington, if other states follows suit, it could put pressure on companies seeking to do business with state governments.  It will be interesting to see how much effect the executive order will have and whether any other states will follow suit.
              Other states are considering a legislative approach.  New York and Vermont are considering passing a law similar to California’s Private Attorneys General Act (“PAGA”).  PAGA allows individuals who personally experienced a violation of a California employment law to sue on behalf of current or former employees who also experienced such violations.  California Supreme Court and the Ninth Circuit has both held that PAGA is not preempted by the Federal Arbitration Act.  Thus, even if federal class action lawsuits are preempted by individual arbitration clauses in employment contracts, state laws such as PAGA could allow plaintiffs to pursue state class action suits.  This is a developing area of the law that bears close monitoring in the future, opines Mr. Surls.



*** Curt Surls is an attorney in the areas of Employment Discrimination, Sexual Harassment, and Wrongful Termination. Located in Manhattan Beach, California, the Law Office of Curt Surls offers a complete range of employment law services to those living throughout Southern California, including all of Los Angeles, Riverside, Orange and San Bernardino counties. With nearly 30 years of experience focusing almost exclusively on this area of law, attorney Curt Surls and his law firm provide the personalized assistance and effective support his clients need. References: Law Firm Website: https://www.curtsurlslaw.com/; Professional Profile on law firm website: https://www.curtsurlslaw.com/attorney-profile/; LinkedIn Profile: https://www.linkedin.com/in/curt-surls-83118b5/; Blog: https://curtsurlsblog.blogspot.com/


Lawyer Curt Surls specializes in the areas of Employment Discrimination, Sexual Harassment, and Wrongful Termination. Located in Manhattan Beach, California, the Law Office of Curt Surls offers a complete range of employment law services to those living throughout Southern California, including all of Los Angeles, Riverside, Orange and San Bernardino counties. With nearly 30 years of experience focusing almost exclusively on this area of law, attorney Curt Surls and his law firm provide the personalized assistance and effective support his clients need. References: Law Firm Website: www.curtsurlslaw.com; Professional Profile on law firm website: https://www.curtsurlslaw.com/attorney-profile/; LinkedIn Profile: https://www.linkedin.com/in/curt-surls-83118b5/; Attorney Profile: https://solomonlawguild.com/curt-surls%2C-esq; Attorney News: https://attorneygazette.com/curt-surls%2C-esq#5282ef1c-68bd-44ca-a705-13c4c4d19d33

Employment attorney Curt Surls comments on a recent decision from the Ninth Circuit Court of Appeals


Experienced employment attorney Curt Surls comments on a recent decision from the Ninth Circuit Court of Appeals, O’Connor v. Uber Technologies, Inc., which held that Uber drivers are bound by their agreement to arbitrate and thus reversed the class certification.
         In continuing fall out from the United States Supreme Court’s decision in Epic Systems Corp. v. Lewis, the Ninth Circuit has followed suit in O’Connor and upheld the arbitration clause between Uber and Uber drivers.  The lawsuit arose from claims by certain Uber drivers that Uber failed to remit the entire tips from customers to drivers as required by California law and for misclassifying Uber drivers as independent contractors. 
         The plaintiffs obtained class certification by successfully arguing before the district court that the 2013 arbitration agreement was unconscionable.  Uber attempted to send out a new arbitration agreement to the plaintiffs in various class action lawsuits in December of 2015.  Plaintiffs moved for injunctive relief and “[t]he district court granted the motion in part on December 23, 2015, citing its authority under Federal Rule of Civil Procedure 23(d) to control communications by Uber to the class members and putative class members.”   Thus, the district court limited the effect of Uber’s arbitration agreement and placed limitation on Uber’s ability to communicate with the new or prospective drivers.
          The Ninth Circuit reversed the district court’s denial of Uber’s motion to compel arbitration in Mohamed v. Uber Technologies, Inc., which covered the same arbitration agreement at issue in O’Connor.  Thus, the O’Connor plaintiffs sought to avoid arbitration by raising new arguments as to why the arbitration agreement was unconscionable.  First, O’Connor plaintiffs argued that the lead plaintiffs “constructively opted out of the arbitration on behalf of the entire class.”  Ninth Circuit noted that such argument only had a Georgia Supreme Court case as support and that case turned on matter of state law.  Noting that there was no federal case law that supports the position that the lead plaintiffs could take such an action behalf of the entire class, the Ninth Circuit rejected this argument.
         O’Connor plaintiffs’ second argument in favor of unconscionability was a similar refrain of the argument made by the class plaintiffs in Epic Systems, that class action waivers violate the National Labor Relations Act.  As Epic Systems settled that issue, Ninth Circuit rejected this argument as well.  Thus, the district court’s denial of the motion to compel arbitration was reversed and class certification was reversed as well.  The case is O’Connor v. Uber Technologies, Inc., Case 14-16078.



*** Curt Surls is an attorney in the areas of Employment Discrimination, Sexual Harassment, and Wrongful Termination. Located in Manhattan Beach, California, the Law Office of Curt Surls offers a complete range of employment law services to those living throughout Southern California, including all of Los Angeles, Riverside, Orange and San Bernardino counties. With nearly 30 years of experience focusing almost exclusively on this area of law, attorney Curt Surls and his law firm provide the personalized assistance and effective support his clients need. References: Law Firm Website: https://www.curtsurlslaw.com/; Professional Profile on law firm website: https://www.curtsurlslaw.com/attorney-profile/; LinkedIn Profile: https://www.linkedin.com/in/curt-surls-83118b5/; Blog: https://curtsurlsblog.blogspot.com/


Lawyer Curt Surls specializes in the areas of Employment Discrimination, Sexual Harassment, and Wrongful Termination. Located in Manhattan Beach, California, the Law Office of Curt Surls offers a complete range of employment law services to those living throughout Southern California, including all of Los Angeles, Riverside, Orange and San Bernardino counties. With nearly 30 years of experience focusing almost exclusively on this area of law, attorney Curt Surls and his law firm provide the personalized assistance and effective support his clients need. References: Law Firm Website: www.curtsurlslaw.com; Professional Profile on law firm website: https://www.curtsurlslaw.com/attorney-profile/; LinkedIn Profile: https://www.linkedin.com/in/curt-surls-83118b5/; Attorney Profile: https://solomonlawguild.com/curt-surls%2C-esq; Attorney News: https://attorneygazette.com/curt-surls%2C-esq#5282ef1c-68bd-44ca-a705-13c4c4d19d33

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