“Novel Massachusetts Decision Finds Waiver of Right to Compel Arbitration Based on Pre-Litigation Actions”

Greg Keating, Katherine Rigby and Fran DeLuca of Epstein Becker & Green have authored this article, available at The National Law Review, discussing the Massachusetts Superior Court decision in Hernandez v. Universal Protection Services. As they explain, while “[m]any employers are aware that they could waive the ability to enforce an arbitration agreement if they delay moving to compel arbitration until after they have engaged in significant litigation activities in court,” Hernandez is “novel and significant” because the court “found that an employer waived its right to compel arbitration based on its actions before an employee filed suit in court.”

The waiver-producing conduct occurred when an employee, alleging that the was a victim of sexual harassment, requested her personnel record. The company’s production, however, failed to include a copy of the arbitration agreement the employee signed. The company’s failure, according to the court, created “irreversible” prejudice since the employee, absent the arbitration agreement, filed suit in court.

As the article notes, since Hernandez is a trial court decision and therefore not binding in Massachusetts (and still may be reversed upon appeal).

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