Federal Arbitration Act Does Not Confer Jurisdiction - Not To Compel or Vacate

So says the 5th Circuit in Smith v. Rush Retail Centers, Inc. (5th Cir. 3/3/04) [pdf]. The Court notes that they are only acting consistent with the concept of a court of limited jurisdiction, and are joining:

The Second, Sixth, Seventh, Ninth, Eleventh, and District of Columbia Circuits [which] have held that § 10 of the FAA does not confer federal jurisdiction and that there must be an independent basis for federal jurisdiction before a district court may entertain a petition to vacate an arbitration award.

Although in the past the jurisprudence surrounding arbitration was somewhat arcane, it is becoming more mainstream. Here, the defendant didn't challenge jurisdiction, but the magistrate did. Find diversity (and $75,000 in controversy, see 9th Circuit view on that here), a federal question, or go to state court.

3 Years In the Making - Who is an Applicant?

Coming tomorrow to the Federal Register nearest you will be the long awaited proposed regulation defining an applicant for many job related purposes. SHRM is happy with the general approach according to their press release. The overview from SHRM on the critical issue of communications received via the Internet:

The proposed regulations suggest three criteria for an individual using the Internet for job seeking purposes to be considered an "applicant": the employer has acted to fill a particular position, the individual has followed the employer's standard procedures for submitting applications, and the individual has indicated an interest in the particular position.

If you subscribe to the BNA's Daily Labor Report you can get a look at the regulation in today's edition.

Rule 68 Offers of Judgment - Attorneys Fees Included Under Title VII, And State Law As Well

After a suit was filed raising claims under Title VII and the NYC ordinance prohibiting discrimination, the defendant extended a Rule 68 offer of judgment for $15,000 "inclusive of all costs available under all local, state or federal statutes accrued to date." Plaintiff accepted and then his counsel immediately sought $35,000 plus in attorneys' fees. The district court found that under Title VII attorneys' fees are part of costs so that they were covered by the $15,000. However, the definition under the New York statute was different, so the court awarded $17,000 under that statute. Wrong said the appellate court. Wilson v. Nomura Securities International, Inc. (2nd Cir. 3/2/04) [pdf]. Since the work for all the claims was truly indivisble, it was not appropriate to award separate attorneys' fees since they were compensated for in the original offer. It was not all good news for defense counsel however, as the dissent was somewhat less than charitable:

[T]he Court deems the parties to have settled the Plaintiff's claim for attorney's fees under municipal law by agreeing to a payment "inclusive of costs." Because that ruling imports into the word "costs" a meaning that it does not have under applicable municipal law and unjustifiably rewards the Defendants for their counsel's inattention to careful drafting, I respectfully dissent.

Ouch!

Putting A Personal Touch On A Soldier Returning Home

Those returning from serving in National Guard or other reserve units are protected by USERRA and often times from an employment lawyer's perspective, that's what we think about. Today's article from Captain Jason Thorne of the Indiana Army National Guard and soon to be returning to Reilly Industries, Inc. in Indianapolis, puts a personal touch on the issues citizen soldiers face in transitioning from one role to another. The WSJ article is a good one, Back to the 'Day Job': A Reservist Reflects. And a good reminder for all of us.

NY, LA, ID and TN Employers On Notice - National Guard Call Up May Impact You

TalkLeft: 18,000 More National Guard Called Up for Iraq has the Washington Post story on the call up of 18,000 National Guard troops from these four states.

More On References, Or Rather, the Lack Thereof

The Christian Science Monitor article, Would you hire this man? uses Charles Cullen, a New Jersey nurse who has admitted killing 40 people, as the poster boy for the problems that occur because of company policies (based on lawyers' advice) to give only neutral information. Although there is a legitimate point to be made about the hindrance to the flow of information, there is also a danger that if you are the employer who chooses to give out negative information, you dramatically increase the chances of a lawsuit. And it is not just defamation, there is also the exposure for retaliation claims if the employee engaged in any protected activity, such as filing a charge of discrimination.



In many ways, the situation reminds one of the the philosophical problem of "the commons," where each herdsman grazing cattle on a common pasture has incentive to act in a selfish way, even though when all do it hurts the common good. When each employer remains mute, they act in their own best interest, notwithstanding that the employer community as a whole may suffer from a lack of good information.

California Decision Making It All or Nothing For Arbitration Raises Concerns

Although it was not the first decision in California to raise the possibility, an intermediate appellate court's ruling that an employer who attempts to reserve to itself the right to take certain actions to court, usually trade secret or competition related, may void the entire arbitration agreement is getting a lot of attention, including this story [subscription required] from the East Bay Times. The case is Abramson v. Juniper Networks (CA - 6th App. Dist. 2/6/04) [pdf].