Alaska Employment Law

In this morning’s opinion, the 9th Circuit has held that the court, not the arbitrator, decides whether an employer has either repudiated an arbitration agreement, or waived its right to compel arbitration of an employment dispute.  

On the merits of repudiation issue, the panel held that the the employee’s failure to properly initate arbitration (by submitting a formal Demand and filing fee to the AAA) mooted the claim that the employer repudiated arbitration by declining the employee’s less formal request for arbitration.   On the merits of the waiver issue, the panel held that the employer had not waived, after considering five factors, most importantly, the employer’s decision not to resort to litigation itself until the employee himself resorted (and then promptly moving to compel arbitration). 

The court held that the arbitration clause in the employment  agreement (”disputes . . . shall be settled . . . in accordance with the then current Model Employment Arbitration Procedures of the [AAA]”) incorporates the applicable AAA rules into the agreement, including the formal requirements of AAA Rule 4 as to a ”Demand” filed with the AAA and served on the opposite party, and payment to AAA of an application fee.  The court applied California law, as the employment agreement specified.

Cox v. Ocean View Hotel Corp., 2008 WL _____ (9th Cir. July 23, 2008)