18th Annual Workplace Class Action Report - 2022 Edition

Annual Workplace Class Action Litigation Report: 2022 Edition 219 the parties shall, to the extent not precluded by law, award costs incurred for the proceedings, including reasonable attorney fees, to the prevailing party." Id . at *28-29. In addition, the contract provided that if Plaintiff challenged the arbitration requirements in the contract, or forced Defendant to litigate to enforce them, then "the prevailing party to such proceedings shall be entitled to an award of all costs, including reasonable attorney fees, incurred in litigating such issues." Id . at *29. Plaintiff asserted that this fee-shifting provisions could potentially make arbitration so prohibitively expensive that the arbitration clause and delegation provision would be rendered unconscionable. The Court agreed with this distinct possibility, but concluded that based only on the current record, it could not determine whether the costs here would reach that level. The Court opined that in this situation, the case law authority in the Third Circuit recognized that a Plaintiff must prove that it would be able to pay the fees required, and thereby discovery on this question would be necessary for Plaintiff to make the relevant showing. The Court therefore concluded that Plaintiff sufficiently raised these concerns, and discovery on this question was necessary. Accordingly, the Court denied Defendant’s motion to compel arbitration without prejudice, and directed the parties to engage in limited discovery on this specific issue. Rodgers-Rouzier, et al. v. American Queen Steamboat Operating Co., 2021 U.S. Dist. LEXIS 44852 (S.D. Ind. March 10, 2021). Plaintiff, a bartender on a river cruise vessel, filed a collective action alleging that Defendant misclassified her and others similarly-situated as exempt employees and thereby failed to pay them overtime compensation in violation of the FLSA. Defendant filed a motion to compel arbitration of Plaintiff’s claims pursuant to an agreement she signed at the commencement of her employment. The Court denied the motion. Plaintiff worked six-week tours on one of Defendants’ vessels. During her six weeks, Plaintiff worked seven days a week, with approximately 12 hours of work per day, and was not paid overtime compensation. Plaintiff’s compensation consisted of a daily rate and a percentage of a service fees paid by guests on the ship. Plaintiff contended that she was exempt from arbitration by either the "seaman" or "transportation worker" exemptions included in § 1 of the Federal Arbitration Act (“FAA”). The Court agreed that Plaintiff was a "seaman" for purposes of the FAA and thus could not be compelled to arbitrate her claims. Id . at *8. The Court explained that although the exemption does not specifically address which employees qualify as “seaman,” the U.S. Supreme Court had ruled that whether or not an employee is a seaman turns on her "employment-related connection to a vessel in navigation,” which is tied to two elements, including that “the worker’s duties must contribute to the function of the vessel or to the accomplishment of its mission, and the worker must have a connection to a vessel in navigation (or an identifiable group of vessels) that is substantial in both its duration and its nature." Id . at *9. The Court found that using that analysis, Plaintiff was a seaman for purposes of the exemption. The Court determined that Defendants’ cruises provided entertainment and transportation, and Plaintiff’s duties as a bartender contributed to the entertainment function provided for the passengers by the cruise boats. Id . at *12. Additionally, the Court held that Plaintiff performed her duties and lived on the vessel for weeks at a time, and thus her connection to the vessels was substantial. Accordingly, the Court found that Plaintiff was exempt from arbitration under § 1 of the FAA and it thereby denied Defendant’s motion to compel arbitration. Rusis, et al. v. IBM, 2021 U.S. Dist. LEXIS 58333 (S.D.N.Y. March 26, 2021) . Plaintiffs, a group of Defendant’s employees who separated from the company at age 40 or older, brought a putative class and collective action asserting claims under the Age Discrimination in Employment Act (“ADEA”) and related state law claims. Plaintiffs alleged that, in an attempt to reframe its public image and to shift into fields such as cloud services, big data analytics, mobile, and social media, Defendant heavily recruited younger workers while systematically pushing out older employees. Defendant filed three separate motions for partial judgment on the pleadings, one of which also sought to compel arbitration, as well as pursuing the dismissal of certain individual former employees who had consented to opt-in to the action and two named Plaintiffs, or, at the very least, a ruling that certain sub-sets of former employees could not participate in this action. Specifically, Defendant sought to compel arbitration of the sub-set of opt-ins who signed binding arbitration agreements with Defendant and had not yet arbitrated their ADEA claims. Starting in 2014 as part of its separation agreements with terminated employees, Defendant began requiring employees to agree to binding individual arbitration of any ADEA claims in exchange for a severance payment . The Court ruled that the former employees who had consented to opt-in to the suit and who had signed arbitration provisions in their separation agreements could not participate in the class and collective action. By signing the agreements, the arbitration opt-in Plaintiffs agreed that they were not entitled to serve or participate as a class action member or representative, or as a collective action member or