Page 15 - Litigation

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Litigation | MONDAY, NOVEMBER 14, 2016 | S15
Arbitration
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may preserve an employee’s right to le his or her claim in court or, even if the claims ultimately are found to be arbitrable, enable the plaintiff to place his or her allegations before the court of public opinion. On the other hand, if the arbitration clause clearly and speci cally covers the claims at issue, the plaintiff and his or her counsel should think twice before publicly ling those claims in court because of the risk of sanctions or a counterclaim for breach of the employment agreement.
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1. Claims against the individual alone are contem- plated by the New York City Human Rights Law, N.Y.C. Admin. Code §8-107 et seq., which provides certain protections for a company that adopts, and meaning- fully enforces, anti-discrimination policies. Thus, su- ing the company may impose additional hurdles that would not exist in a suit against the individual alleged perpetrator.
2. The Federal Arbitration Act broadly applies to any contract containing an arbitration clause that “affects” interstate commerce. Diamond Waterproo ng Sys. v. 55 Liberty Owners, 4 N.Y.3d 247, 252 (N.Y. 2005).
3. 996 F.2d 1353, 1360 (2d Cir. 1993).
4. Id.
5. Id.
6. 547 F.3d 137, 143 n.3 (2d Cir. 2008); see also Astra
Oil v. Rover Navigation, 344 F.3d 276, 279 n.2 (2d Cir. 2003) (noting that there are ve general principles under which a signatory might compel a non-signatory to arbi- trate, but stating that “we express no view on whether these other theories [other than estoppel] would ever apply when a non-signatory seeks to compel a signatory to participate in arbitration”).
7. Ross, 547 F.3d at 143 (quoting JLM Indus. v. Stolt- Nielsen SA, 387 F.3d 163, 177 (2d Cir. 2004)).
8. In Ragone v. Atlantic Video at Manhattan Center, 595 F.3d 115 (2d Cir. 2010), the Second Circuit applied the estoppel theory to permit a non-signatory to com- pel arbitration of employment discrimination claims, but that case involved unique facts. The plaintiff was a make-up artist who was hired by a production company to provide services to non-signatory ESPN, the televi- sion sports network. The plaintiff had alleged that she considered ESPN to be her “co-employer.” Id. at 127. The Southern District of New York applied the estoppel theo- ry to permit a non-signatory senior employee to compel arbitration of a plaintiff’s retaliatory discharge claims in Cicchetti v. Davis Selected Advisors, No. 02 Civ.10150 RMB, 2003 WL 22723015, at *3 (S.D.N.Y. 2003), but that decision provided no analysis of whether the claims were intertwined with the employment agreement. Ad- ditionally, the arbitration clause at issue in Cicchetti expressly included “claims of discrimination and/or ha- rassment.” Id. at *2 n.1.
9. No. 94 Civ. 5849 (RPP) (S.D.N.Y. 1995).
10. 4 A.D.3d 230 (1st Dep’t 2004).
11. In Gateson, the plaintiff’s claims included breach
of contract and promissory estoppel. 1995 WL 387720, at *1. In DiBello, the plaintiff’s claims included tortious interference with actual and prospective contractual re- lations. 4 A.D.3d at 231. Additionally, in DiBello, the arbi- tration clause expressly included claims based on “tort, discrimination, retaliation, or otherwise.” Id.
12. 299 F.3d 462, 466-67 (5th Cir. 2002).
13. Id. at 465; see also Britton v. Co-op Banking, 4 F.3d 742, 748 (9th Cir. 1993) (holding that a non-signatory agent, of cer, or employee of a company could not com- pel arbitration where the fraud claims against him were “unrelated to any provision or interpretation of the con- tract”).
14. 22 F.3d 351 (1st Cir. 1994).
15. Id. at 359 (internal quotation marks omitted).
16. 299 F.3d at 467.
17. 22 F.3d at 360 (emphasis in original); see also Con-
stantino v. Frechette, 897 N.E.2d 1262, 1266 (Mass. App. Ct. 2008) (“If the nursing home harbored the intention to bring its employees within the purview of the arbitration provision, it had the duty to clearly inform its patients that the arbitration provision was intended to inure to the bene t of individual nurses as well ... . This was not done in the contract before us, and important rights should not be waived by implication.”).
18. Equal Employment Opportunity Commission, Advancing Opportunity: A Review of the Systematic Pro- gram of the U.S. Equal Employment Opportunity Com- mission, July 7, 2016, available at https://www.eeoc.gov/ eeoc/systematic/review/.
19. The issue of what constitutes a “forced” arbitra- tion agreement is not the subject of this article.
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