Labor and Employment Arbitrator: Arbitration is Compelled in an FLSA and NYS Labor Law Overtime

Tuesday, June 6, 2017

Arbitration is Compelled in an FLSA and NYS Labor Law Overtime

Moise v. Family Dollar Store, ____F.Supp. 2d____, No. 16-CV-631, NYLJ June 7, 2017 (S.D.N.Y. 2017), is an interesting decision.

A supervisor/Shelf Stocker claimed that he was unlawfully denied overtime pay under the FLSA and New York law. Significantly, however, during his on line drawing he was required to accept an arbitration agreement. The employee downloaded this agreement and checked a box that he accepted it.
The court rejected the argument that there was no valid agreement to arbitrate because the employee did not remember accepting this agreement. The court also rejected the claim that the agreement was unconscionable because that is for the arbitrator to decide, reasoning:

Under Rent-A-Center, Moise's unconscionability claim is for the arbitrator to decide. The Agreement provides that "any claim or controversy regarding the Agreement['s]…unconscionability" shall be "decided by an arbitrator through arbitration and not by way of court or jury trial." Broel Decl. Ex. B (boldface omitted). This provision plainly delegates a claim of unconscionability to the arbitrator. Moise did not, however, direct his unconscionability claim to the delegation provision specifically — indeed, Moise's opposition brief does not mention the delegation provision at all. See Pl.'s Opp'n Mem. at 9-12. Moise's failure to direct his attack at the delegation provision is particularly striking because, while his brief quotes from other sections of the Agreement, see id. at 10, it is the delegation provision that specifically addresses the "unconscionability" argument he advances here, Broel Decl. Ex. B. Because Moise's unconscionability claim falls within a provision delegating this claim to the arbitrator, and because Moise did not specifically challenge this provision, the Court must enforce the delegation provision and refer the question of unconscionability to the arbitrator. See Rent-A-Center, 561 U.S. at 71-72; see also, e.g., Philippe v. Red Lobster Rests. LLC, No. 15-CV-2080 (VEC), 2015 WL 4617247, at *4 (S.D.N.Y. Aug. 3, 2015) (granting a motion to compel arbitration where the opposing party did not challenge a delegation provision that "plainly encompass[ed]" his claim).

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Mitchell H. Rubinstein's Accomplishments

Education

J.D. Hofstra University School of Law

B.S. Cornell University School of Industrial and Labor Relations

Presently

-Hearing Officer, N.Y.C. Office of Administrative Trials & Hearings (“OATH”)

-Hearing Officer, N.Y.S. Education Dep’t., Office of Adult Career & Continuing Educational Services-Vocational Rehabilitation (“ACCES-VR”)

-Public Arbitrator-FINRA

-Adjunct Professor of Law, New York Law School

Formerly

-Employment Attorney, Sapir, Schragin, LLP (represented individuals)

-Senior Counsel, New York State United Teachers (“NYSUT”) (represented unions and union members)

-Adjunct Professor of Law, St. John’s Law School

-Labor Attorney, Trans World Airlines (“TWA”) (represented employer)

-Labor Associate, Breed, Abbott & Morgan (represented employers)

-Labor Associate, Seyfarth, Shaw, Fairweather & Geraldson (represented employers)

Published Scholarship

LAW REVIEW ARTICLES

1. Employees, Employers and Quasi-Employers; An Analysis Of Employees & Employers Who Operate In The Borderland Of An Employer-Employee Relationship, 14 U. Pa. J. Bus. L. 605 (2012).

2. Duty Of Fair Representation Jurisprudential Reform: The Need To Adjudicate Disputes In Internal Union Review Tribunals And The Forgotten Remedy Of Re-Arbitration, 42 U. Mich. J.L. Reform 517 (2009) (lead article).

3. Obama’s Big Deal; The 2009 Federal Stimulus; Labor And Employment Law At The Cross Roads, 33 Rutgers L. Rec. 1 (2009) (lead article).

4. A Lawyer’s Worst Nightmare: The Story Of A Lawyer And His Nurse Clients Who Were Both Criminally Charged Because The Nurses Resigned En Mass, 103 Nw. U. L. Rev. Colloquy 317 (2009).

5. Privacy Legal Issues In The Public Sector, 58th Ann. N.Y.U. Conf. on Lab., ch. 18, pp. 629-669 (Wolters Kluwer, Jonathan Remy Nash & Samuel Estreicher eds. 2010)(by invitation).

6. Sprint/United Co. v. Mendelsohn: The Supreme Court Appears To Have Punted On The Admissibility of “Me Too’ Evidence Of Discrimination. But Did It? 102 Nw. U. L. Rev. Colloquy 264 (2008)

6A. Reply To Professors David L. Gregory and Paul M. Secunda With Respect To The Significance Of Sprint/United Management Company v. Mendelsohn, 102 Nw. U. L. Rev. Colloquy 387 (2008).

7. Parents As Quasi-Therapists Under the Individuals With Disabilities Education Act, 76 U. Cin. L. Rev. 899 (2008).

8. Is a Labor Relations Evidentiary Privilege Developing?,29 Berkeley J. Emp. & Lab. L. 221 (2008).

9. Assignment of Labor Arbitration, 81 St. John’s L. Rev. 41 (2007).

10. Our Nation’s Forgotten Workers: The Unprotected Volunteers, 9 U. Pa. J. Lab. & Emp. L. 147 (2006).

11. Union Immunity From Suit In New York, 2 N.Y.U. J. L. & Bus 641 (Summer 2006) (lead article).

12. Altering Judicial Review Of Labor Arbitration Awards, 2006 Mich. St. L. Rev. 235 (Summer) (lead article).

13. Advisory Arbitration Under New York Law: Does It Have A Place In Employment Law? 79 St. John’s L. Rev. 419 (Spring 2005).

14. A New York Court Recognizes A Labor Union Evidentiary Privilege, 9 The Labor Lawyer 595 (Fall 1993).

15. The Use of Predischarge Misconduct Discovered After An Employee’s Termination As A Defense In Employment Litigation, 24 Suffolk Univ. L. Rev. 1 (1990) (lead article).

16. The Affirmative Action Controversy, 3 Hofstra Lab. L. J. 111 (1985).

SHORTER PUBLICATIONS

1. A Peek at New York Defamation Law, 82 N.Y.S. Bar. J. 58 (Nov./Dec. 2010).

2. Attorney Labor Unions, 79 N.Y.S. Bar Journal 23 (Jan. 2007).

3. Public Sector Labor and Employment Law (2d Ed. 1998) (By Lefkowitz, Osterman & Townley).

4. Contributing Editor, Discipline And Discharge In Arbitration (BNA 1998)

5. Reciprocal Discovery In Teacher Discipline Proceeding Under Section 3020-a Of The Education Law, Vol. 23, No. 2, p. 23, Labor & Employment Newsletter (NYS Bar Ass’n. June 1998).

6. Labor Arbitration Under New York Law, 64 N.Y.S. Bar Journal 35 (Sept/Oct. 1992).

7. Refusal to Hire Overqualified Applicants May Age Discrimination, NYLJ, May 17, 1991 at 1

8. Don’t Burden The Employers, National Law Journal, Oct. 30, 1989, at 13, col. 1.

Labor and Employment Arbitrator

Tuesday, June 6, 2017

Arbitration is Compelled in an FLSA and NYS Labor Law Overtime

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