A "Participation Waiver" Is Not Exactly The Same As A Waiver Of The Right To Sue Or A Bar Against Bringing A Class Action.
Ari J. Stiller, an attorney with Kinglsey & Kingsley, has an article in the June 26, 2019 issue of the Daily Journal entitled, "Participation waivers test Federal Arbitration Act's limits."
As Stiller explains, "So-called 'participation' waivers don't just try to bar employees from bringing a class or collective action in arbitration; they bar participating in such an action that someone else brings, regardless of the forum." Stiller argues that this is a bridge too far, and that once a lawsuit is filed by a party who is not bound by an arbitration agreement, the procedural rules applicable to court should apply. "Courts should not enforce such [participation] waivers outside of arbitration," argues Stiller, "to deny discovery or class certification, and certainly not to prevent workers from participating in a classwide recovery of unpaid wages."
I asked Stiller whether there are cases specifically addressing "participation waivers" and he replied that he did not know of any, adding: "We have litigated this issue several times recently, in the context of employers trying to block discovery as to individuals who signed participation waivers and an employer trying to strike class allegations from a complaint." So this issue is a live one, even if published opinions have not yet confronted the enforceability of "participation waivers."
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