February 2012

By: James B. Sherman, Esq.

The Supreme Court has endorsed arbitration as a suitable forum for the resolution of most employment-related civil rights claims. More recently, in 2009, the Supreme Court also held that a union representative may bind employees to a collectively bargained agreement to arbitrate such disputes in return for other concessions from the employer. 14 Penn Plaza LLC v. Pyett, 129 S.Ct. 1456, 1469 (2009). However, the U. S. Court of Appeals for the Eighth Circuit was presented with a unique argument that questioned the legality of arbitration agreements insofar as the Family and Medical Leave Act (FMLA), is concerned.

In Thompson v. Air Transport Intl. LLC, __ F.3d __ (8 ^th Cir. 2011), the employee argued that a collective bargaining agreement between his employer and his union representative – an airline division of the Teamsters – could not legally require mandatory arbitration of his claims brought under the FMLA. Specifically, Thompson argued that because Department of Labor (DOL) regulations prohibit any contractual waiver of rights under the FMLA [see 29 C.F.R. §825.220(d)], Thompson argued that his employer and union could not lawfully waive his FMLA claims. However, the court dismissed this argument, saying: “A waiver of a judicial forum is not a waiver of claims but instead is a waiver of ‘only the right to seek relief from a court in the first instance.’” Therefore, Thompson was not permitted to carve out an exception to arbitration agreements applicable only to FMLA claims.

Employers still need to be aware that the FMLA along with the FLSA are unique among most workplace laws in that any severance or settlement agreement purporting to waive an employee’s FMLA/FLSA rights is probably unenforceable. However, as the Thompson case illustrates, this distinction does not prevent an agreement requiring mandatory arbitration of FMLA claims, which can be lawfully enforced. The same applies where arbitration is required under a collective bargaining agreement, so long as the union contract clearly covers disputes based upon the FMLA.

For more information on pros and cons of mandating arbitration of employment disputes, see this author’s May 2011 E-Alert regarding the Supreme Court’s decision in AT&T Mobility, LLC. v. Concepcion, or contact attorney James B. Sherman at jasherman@wesselssherman.com or 952-746-1700.