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Employees who agree to arbitration lose federal option in FMLA, NJLAD cases

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in FMLA Guidelines,Human Resources

Employees who agree that they want an arbitrator to handle their absenteeism claims shortly after they have been disciplined can’t later file a federal FMLA or New Jersey Law Against Discrimination (NJLAD) claim. By voluntarily choosing arbitration (rather than asking a federal court to hold the arbitration agreement invalid), they lose the right to challenge the arbitration decision.

Recent case:
Thomas Hilinski lost his job at Gordon Terminal for excessive absences. He asked an arbitrator to overturn the company’s decision and participated in the hearing. Then the arbitrator upheld the company decision.

Hilinski appealed, contending that he hadn’t given up his right to argue that some of his absences were for FMLA reasons. But the 3rd Circuit Court of Appeals disagreed. It reasoned that by not complaining earlier—and by accepting arbitration as a remedy—he waived the right to challenge arbitration or the arbitrator’s decision. (Hilinski v. Gordon Terminal Services Company, No. 06-2779, 3rd Cir., 2008)

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