Labor and Employment Law
Ca. Labor & Emp't Rev. May 2018, Vol 32, No. 3
Content
- Cases Pending Before the California Supreme Court
- Employment Law Case Notes
- From the Editors Editorial Policy
- Inside the Law Review
- Labor & Employment Law Section Executive Committee 2017-2018
- Masthead
- MCLE Self-Study: Tax Reform Impacts the Tax Treatment of Sexual Harassment Settlements for Both Plaintiffs and Defendants
- Message From the Chair
- Nlra Case Notes
- Public Sector Case Notes
- Wage and Hour Case Notes
- Adr Update: Gentry Rides Again: When Gentry Still Applies
ADR Update: Gentry Rides Again: When Gentry Still Applies
By Joel M. Grossman
Joel M. Grossman is a mediator and arbitrator with JAMS in Los Angeles. He has been selected four times as one of the Top Neutrals in California by the Daily Journal. For more information please contact www.grossmanmediation.com.
Employment lawyers in California are well aware that ever since the United States Supreme Court ruled in ATT Mobility v. Concepcion1 that class action waivers are not unconscionable, courts have been enforcing the terms of arbitration agreements containing class action waivers. Even though the California Supreme Court had ruled in Gentry v. Superior Court2 that such a waiver could be unconscionable, and therefore unenforceable, the U.S. Supreme Court in Concepcion held that such agreements must be enforced under the Federal Arbitration Act (FAA). Subsequently, the California Supreme Court enforced a class action waiver under the FAA in Iskanian v. CLS Transportation Los Angeles, LLC,3 notwithstanding its prior holding in Gentry. Gentry seemed dead as a doornail so long as the FAA applied.
Lawyers are presently awaiting the U.S. Supreme Court’s decision in three cases regarding whether a court may enforce a class action waiver under the FAA: Ernst & Young v. Morris,4 Lewis v. Epic Systems Corp.,5 and NLRB v. Murphy Oil.6 The issue in these cases is whether the right to engage in concerted activity guaranteed to workers by the National Labor Relations Act renders unenforceable an arbitration agreement that contains a class action waiver, since banding together in a class action could be deemed a form of concerted activity.