Pursuing FLSA and Employment Discrimination Claims in the Wake of Epic Systems: Views from Arbitrator, Attorneys and In-House Counsel

September 22, 2018
2:15 PM  -  3:45 PM

Hosted by the Labor and Employment Law Committee

NY CLE: 1.5 Credits in Areas of Professional Practice, Transitional/Non-Transitional

Program Chair: Joane Wong, Co-Chair, Labor and Employment Law Committee

Eric Su, Esq., Managing Partner, FordHarrison LLP
Kent Hirozawa, Partner, Gladstein, Reif & Meginniss LLP
Theodore Cheng, Mediator/Arbitrator
Asako Aiba, Manager, Legal Division of MST America Inc. 

Moderator: Joane Wong, Senior Attorney, National Labor Relations Board, Region 2 (Manhattan Office) 

In Epic Systems Corp. v. Lewis, the Supreme Court of the United States gave a narrow reading to “protected concerted activities” in Section 7 of the National Labor Relations Act, limiting it to activities in the workplace and excluding it from “courtroom-bound” class actions and joint litigation. It also declined to conclude that the NLRA created a substantive workers’ right to engage in concerted activities, displacing the Federal Arbitration Act. Thus, in most contexts now, if an employee signs an agreement to engage in individual arbitration of employment-related disputes and the agreement contains a class action waiver, the employee is limited to presenting his or her claims as a single plaintiff in arbitration.

Are there still opportunities for workers to file class action claims despite having signed a class-action waiver? What are local and state governments doing in reaction to Epic Systems? What will employee-plaintiffs do in response to this decision? What strategies will plaintiff-side lawyers utilize to assert the rights of employees under the FLSA and similar worker-protection statutes going forward? How will management-side lawyers advise their clients on the use of mandatory arbitration agreements, which have repeatedly been endorsed by the Supreme Court? Join a panel of experienced experts in discussing these questions and the real implications of pursuing these claims after Epic Systems.