Just because your employees have agreed to settle any disputes through arbitration rather than a lawsuit doesn’t mean that they actually will.  Despite clear arbitration agreements, employees sometimes try to get their day in court, subjecting the employer to lengthy and expensive litigation.  Generally, the argument for avoiding the arbitration agreement goes something like this:  “I know that I agreed to arbitration, but this claim is not subject to my agreement.”  A federal district court in Ohio recently shot this argument down, holding that the plaintiff-employee was bound to her arbitration agreement.  Furthermore, the fact that the employee alleged a violation of the Family and Medical Leave Act (FMLA) did not matter.  The court held that FMLA claims are arbitrable.

The plaintiff in Morgan v. United Healthcare Services, Inc. was a former employee who had been discharged for excessive absenteeism under the defendant employer’s attendance policy.  She alleged that because her absence was related to a miscarriage she had had a month earlier, her discharge violated the FMLA and Ohio’s pregnancy discrimination law.  She also threw in a claim of intentional infliction of emotional distress.

When the plaintiff was hired, she had expressly agreed, as a condition of her employment, to arbitrate all covered employment disputes through final and binding arbitration.  The arbitration agreement specifically included FMLA claims, as well as state anti-discrimination and tort claims.  Thus, the court found that the parties had agreed to arbitration and that all of the plaintiff’s claims were subject to that arbitration agreement.

If federal statutory claims—such as alleged FMLA violations—are asserted, however, courts are to consider whether Congress intended for those claims to be nonarbitrable.  The burden is on the plaintiff to show that Congress intended for claims under the particular law not to be subject to arbitration.  In Morgan, the court noted that the plaintiff had not shown that Congress intended FMLA claims to be nonarbitrable.  Furthermore, the court found that there was no provision in the FMLA itself that suggested that agreements to arbitrate alleged violations of the act are unenforceable.

Because the court found that all of the plaintiff’s claims were subject to a binding arbitration agreement, it dismissed the case against the employer.  Of course, this doesn’t mean that the employer is completely out of the woods.  But now, it is arguing its case in front of an experienced arbitrator and not in front of an unpredictable jury.

As an employer, you should review any arbitration agreements you have with your employees.  If they don’t make disputes under federal statutes such as the FMLA subject to final and binding arbitration, you might consider revising them.  A good labor and employment attorney can help you draft the best possible arbitration agreement.

Mark Jeffries focuses his practice in the area of labor and employment law. He has represented employers in wrongful discharge and discrimination cases in state and federal court, as well as before the West Virginia Human Rights Commission and the U.S. Equal Opportunity Commission.
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» Read the full biography of Mark G. Jeffries at Steptoe & Johnson

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