Arbitration Provisions: Applicable to Independent Contractors or Not? 

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From Lexology, Andres F. Puerta discusses a dispute over an arbitration clause in an agreement between security workers classified as independent contractors and the National Football League. Andres writes:

A group of security workers for the National Football League urged Judge Andrew L. Carter, Jr. of the Southern District of New York to deny the NFL’s motion to arbitrate the group’s claims, arguing they never agreed to arbitrate statutory employment rights with the league. In Foran, et al. v. National Football League, et al., the group of security workers sued the NFL in November 2018 for unpaid overtime wages under the Fair Labor Standards Act (FLSA), among other claims, alleging the NFL misclassified them as independent contractors. The NFL moved to compel arbitration arguing the security workers’ claims are covered by the arbitration provision in their independent contractor agreements. The plaintiffs, in opposition, contend that unless the arbitration provision specifically includes a waiver of statutory claims under the FLSA, the NFL cannot compel arbitration of the claims. The motion remains pending before Judge Carter.

The subject arbitration provision states in part: “any dispute arising out of this Agreement or the services performed by Consultant pursuant to this Agreement shall be referred to final and binding arbitration pursuant to the procedures of the American Arbitration Association.” Under New York law, an arbitration provision in the employment law context must contain a “clear and unmistakable” waiver that the parties intended to arbitrate employment rights claims. A “clear and unmistakable” waiver exists where either: (1) the arbitration provision contains an explicit provision whereby an employee specifically agrees to submit all causes of action arising out of the employee’s employment to arbitration; or (2) the arbitration provision specifically references or incorporates a statute into the agreement to arbitrate disputes.

In Foran, the arbitration provision made no reference nor incorporated any statute or waiver of statutory employment rights, and thus would likely not constitute a “clear and unmistakable” waiver under the second requirement. What remains unclear, however, is whether the court will find that the arbitration provision’s reference to “any dispute arising out of this Agreement” a “clear and unmistakable” waiver under the first requirement.

Read the full story at Arbitration Provisions: Applicable to Independent Contractors or Not? – Lexology

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