Two different ways a late arbitration request goes unfulfilled

Two recent arbitration decisions highlight two different ways arbitration plans can go awry. The first shows that failing to assert your arbitration rights early enough can be considered a waiver of the right to arbitrate. The second case reminds us not to ask an arbitrator to do anything more after she renders a decision since her jurisdiction is over.

You snooze, you lose

In August 2018, Shiekh Shoes hired Britany Davis as a sales associate. As part of her “new hire” paperwork, they signed an agreement “to resolve any and all disputes or claims each may have against the other which relate in any manner whatsoever as to Employee’s employment . . . by binding arbitration.” According to Davis, she was subjected to ongoing, sexually explicit, and demeaning comments, unwanted touching, and indecent exposure from her coworker, Danilo Ensuncho, as well as other harassing conduct from Shiekh customers.

On March 25, 2019, Davis filed a complaint against Shiekh and Ensuncho. The first claim asserted violations of the California Fair Employment and Housing Act (FEHA) based on (1) sex discrimination, (2) sexual harassment, (3) retaliation, and (4) failure to take all reasonable steps necessary to prevent discrimination and harassment.