The practice of using forced arbitration agreements in employment contracts has been historically controversial due to being perceived as depriving employees of their rights and violating NLRA. While the recent sexual harassment claim against Fox News and Roger Ailes shined the largest spotlight on the usage of forced arbitration agreements, Uber and Dish are 2 additional big fish (in a pond of many) that are/were recently in court over such employment related clauses. The Murphy Oil case currently being tried by the supreme court is poised to become a precedent setting case when it comes to addressing the legality of these forced agreements. In a rare and unexpected move, the DOJ and solicitor general (under Trump) have reversed a prior opinion (via an amicus brief) and are now siding with the employers. While they haven’t been given the green light yet, if the DOJ’s opinion is any indication of the stance the courts will ultimately take, it would appear as though such a ruling may be close behind.

Since we are on the topic of employment related litigation, this is a convenient time to remind D&O policyholders to review their D&O/EPLI insurance policies to ensure that the definition of “claim” is inclusive of demands for alternative dispute resolutions.

http://www.scotusblog.com/case-files/cases/national-labor-relations-board-v-murphy-oil-usa-inc/