February 1, 2015

SB 15-069: Repealing “Job Protection and Civil Rights Enforcement Act of 2013″

On January 14, 2015, Sen. Laura Woods and Rep. Libby Szabo introduced SB 15-069 — Concerning the Repeal of the “Job Protection and Civil Rights Enforcement Act Of 2013.” This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

In 2013, the general assembly enacted HB13-1136, the “Job Protection and Civil Rights Enforcement Act of 2013″ (act), which established compensatory and punitive damage remedies, as well as front pay, for a person who proves that an employer engaged in a discriminatory or unfair employment practice under state law. These remedies were created in addition to equitable relief, such as back pay, reinstatement, or hiring, that was already available to employment discrimination victims. Additionally, the act: ! Expanded age discrimination claims under state law to persons 70 years of age or older; Authorized the use of moneys in the risk management fund to pay claims for compensatory damages against the state or its officials or employees; and Required the state civil rights commission to create a volunteer working group to assist in education and outreach efforts and provide the commission with information to post on its web site regarding educational resources available to employers to help them understand and comply with antidiscrimination laws. With the exception of the expansion of age-based discrimination claims to individuals who are 70 years of age or older, the bill repeals all components of the act and restores the equitable relief remedies that were available to employment discrimination victims making claims under state law prior to the passage of the act.

The bill was assigned to the Senate Business, Labor, & Technology Committee.

Tenth Circuit: Employee Must Be Able to Perform Essential Job Duties to Make Claim Under ADA and Title VII

The Tenth Circuit Court of Appeals issued its opinion in Myers v. Knight Protective Service, Inc. on Monday, December 22, 2014.

Alphonso Myers suffered a workplace injury, and was granted Social Security disability benefits on the ground he was unable to work. He then applied for and was selected for a position as a security guard for Knight Protective Service. During the interview process, he was asked repeatedly if he had any physical disabilities, and answered no each time. However, at work, his supervisor noticed he seemed to be in pain, and Myers confessed to having undergone several back and neck surgeries. The supervisor sent him home and told him he could not return to work unless he passed a physical examination. Several months passed, during which Myers waited for Knight to contact him to schedule the exam, but it did not happen, so Myers considered himself effectively terminated and sued Knight for race and disability discrimination, alleging several torts. The district court dismissed some of Myers’ claims and granted summary judgment to Knight on the rest. Myers appealed.

The Tenth Circuit affirmed the district court. In order to make a claim under the ADA and Title VII, the employee must show he was qualified to perform the essential functions of the job. Myers could not show qualification; in his application with Knight, he acknowledged he would be required to “engage in frequent and prolonged walking, standing, and sitting; to react quickly to dangerous situations; to subdue violent individuals; and to lift heavy weights.” He could do none of those activities.

The Tenth Circuit also rejected Myers’ assertion of disparate treatment based on race, finding no support for his allegations. The Tenth Circuit likewise rejected Myers’ complaint that the district court failed to address his “cat’s paw” argument as to his supervisor, since he failed to establish a prima facie case of discrimination by anyone. Myers’ tortious interference claims also failed for lack of evidence.

The Tenth Circuit affirmed the district court’s dismissal and summary judgment and granted the motion to seal certain medical records.

Tenth Circuit: Federal Arbitration Act Provides Interlocutory Jurisdiction in Limited Circumstances

The Tenth Circuit Court of Appeals issued its opinion in International Brotherhood of Electrical Workers v. Public Service Company of Colorado on Tuesday, December 9, 2014.

In 2009, the International Brotherhood of Electrical Workers (Union) and Public Service Co. entered into a Collective Bargaining Agreement covering Union members who were Public Service employees. Public Service unilaterally amended the agreement approximately two years later, affecting prescription drug prices for retirees. The Union followed dispute procedures and eventually demanded that the issue be submitted to arbitration. Public Service refused, so the Union sued the company and asked the district court to stay the proceedings and compel arbitration. The district court denied the Union’s motion, and it appealed.

The Tenth Circuit first questioned its jurisdiction to hear the interlocutory appeal. The Tenth Circuit found that the instant appeal fell within one of the FAA’s exceptions providing for interlocutory appeals pursuant to Tenth Circuit case law and Supreme Court precedent in Circuit City Stores, Inc. v. Adams, 532 U.S. 105 (2001).

Addressing arbitrability of the issue at suit, the Tenth Circuit determined that the Collective Bargaining Agreement did not cover disputes related to retired workers, only to current employees. The Union argued the district court failed to apply the presumption in favor of arbitrability, but the Tenth Circuit disagreed, finding instead that the court evaluated the presumption and held it inapplicable. The Union also argued that the district court erred by addressing the underlying merits of the dispute, but the Tenth Circuit examined the record and found no evidence of merit review.

The Tenth Circuit affirmed the district court’s order denying arbitration. Judge Hartz concurred with the finding of jurisdiction but dissented with the panel’s finding that the dispute was not arbitrable.

Tenth Circuit: Surmise and Conjecture Insufficient to Establish Causal Connection Between Discrimination Claim and Refusal to Promote

The Tenth Circuit Court of Appeals issued its opinion in Ward v. Jewell on Monday, November 24, 2014.

Mike Ward was once a supervisor for the Department of the Interior, Bureau of Reclamation. After another employee filed a charge of discrimination against Mr. Ward, he was demoted and Mr. Durrant took over his supervisory role. Mr. Ward complained to the EEOC about the reorganization, and a few years later, he tried unsuccessfully to get his old job back. Later, he applied for a managerial position in Provo, Utah, but was not selected. He invoked Title VII, blaming his employer for retaliation for failing to give him his old job back and passing over him for the Provo position. To survive summary judgment, he had to show a connection between the protected activity and the refusal to give him his old job back or hire him for the other supervisory position.

The Tenth Circuit analyzed Mr. Ward’s Title VII claims and found that he did not show a connection between the protected activity and the employment actions. Because of the remoteness in time between Mr. Ward’s EEOC claim and the Department’s refusal to terminate or demote Mr. Durrant and give Mr. Ward his old job back, Mr. Ward needed to use additional evidence to establish a causal connection between the two events. Mr. Ward could only produce evidence of a causal connection using surmise and conjecture, which was insufficient to be probative of retaliation, and a reasonable fact-finder could not infer retaliation from the decision to keep another employee in his job.

As to the second claim, the Tenth Circuit again found causation lacking in the failure to hire Mr. Ward for the Provo position. Mr. Ward would have had to prove retaliation through a “cat’s paw” theory, imputing the biased motive of a subordinate to the final decision-maker. Mr. Ward could not advance any evidence to show that the final decision-maker relied on information from subordinates. An initial panel recommended two candidates (Mr. Ward was not one of the two) to the final hiring agent, Mr. Walkoviak, but Mr. Walkoviak instead interviewed all five applicants for the Provo position and decided to hire an applicant based on his experience. The panel ultimately had little to no input on Mr. Walkoviak’s hiring decision, and the “cat’s paw” theory failed. Mr. Ward was unable to show any retaliation based on Mr. Walkoviak’s failure to hire him for the Provo position.

The Tenth Circuit found Mr. Ward unable to show discriminatory motive for either of the employment decisions, and affirmed the district court’s summary judgment in favor of the Department.

Colorado Court of Appeals: Procedural Errors in District Court Review Required Reversal

The Colorado Court of Appeals issued its opinion in Nixon v. City & County of Denver on Thursday, December 18, 2014.

Police Officer—Employment—Discharge—Commission of a Deceptive Act—Administrative Agency.

Respondents, the City and County of Denver (City) and its Manager of Safety, discharged Nixon, a former police officer with the Denver Police Department, for his involvement in an incident involving the arrest of citizens outside a Denver restaurant. Nixon was discharged for violating departmental rule RR-112.2 (Commission of a Deceptive Act) in connection with his report of the arrest incident. After Nixon submitted his report, the City discovered that the events had been captured on a video surveillance camera. The Manager of Safety discharged Nixon in part because of perceived discrepancies between his report and the video footage. The district court upheld the Civil Service Commission’s (Commission) decision to discharge him

In a CRCP 106(a)(4) proceeding such as this, the appellate court’s review is limited to determining whether the Commission exceeded its jurisdiction or abused its discretion. Here, the Commission erred by (1) holding that it was bound by the hearing panel’s findings of facts, and (2) failing to make ultimate conclusions of factas to whether Nixon “willfully, intentionally, or knowingly commit[ted] a materially deceptive act, including, but not limited to, verbally departing from the truth, making a false report, or intentionally omitting information,” as provided in RR-112.2. Therefore, the Commission committed an error of law. Further, the district court erred by making its own findings in lieu of remanding the case to the Commission. Accordingly, the district court’s order was reversed and the case was remanded to the Commission for reconsideration of its decision regarding Nixon.

Summary and full case available here, courtesy of The Colorado Lawyer.

Tenth Circuit: Plaintiff Denied Due Process When Not Allowed Hearing on Allegations of Sexual Harassment

The Tenth Circuit Court of Appeals issued its opinion in McDonald v. Wise on Tuesday, October 28, 2014.

Wayne McDonald was a Special Assistant to Denver Mayor Michael Hancock in 2011 and 2012. He was appointed by the mayor to serve “at the pleasure of the Special Assistant,” and in his official duties, he worked closely with Denver police officer Leslie Wise, who provided security to the mayor. He communicated with Ms. Wise on and off duty, discussing both work-related and personal matters. Between September 2011 and March 2012, Ms. Wise called Mr. McDonald at least 41 times on his personal phone, with calls as early as 6:26 a.m. and as late as 7:39 p.m. On November 3, 2011, unbeknownst to Mr. McDonald, Ms. Wise recorded two of these calls. At least 3/4 of the calls from Ms. Wise to Mr. McDonald occurred after November 3, 2011. She also gave him a Christmas gift, attended church with him, and met his family. They last spoke on March 14, 2012, when Ms. Wise telephoned Mr. McDonald.

On May 18, 2012, the mayor’s deputy chief of staff and the city attorney informed Mr. McDonald that Ms. Wise had accused him of sexual harassment and produced the two recorded phone calls from November 3, 2011. Mr. McDonald denied the allegations and agreed to participate fully in an investigation. He left the meeting with the understanding that he was suspended pending the outcome of an investigation and hearing. At a subsequent meeting on May 21, Mr. McDonald was told he could either resign or be fired due to the allegations. Mr. McDonald requested an investigation and opportunity to defend himself, but was fired on the spot. The mayor and his staff subsequently informed the news media that Mr. McDonald was fired for sexual harassment. Mr. McDonald applied for unemployment compensation benefits, but was denied based on his termination for sexual harassment. He appealed to the Colorado Department of Labor, and the hearing officer determined Mr. McDonald was not responsible for the separation from employment. Mr. McDonald has not been able to find subsequent employment, and has been told by potential employers that his termination for sexual harassment is the reason. He brought suit against the city, the mayor, and the mayor’s press secretary for due process violations, breach of contract, and unlawful disclosure of confidential information. He sued Ms. Wise for defamation. The district court rejected all of his claims, and this appeal followed.

The Tenth Circuit first addressed Mr. McDonald’s claims that he was deprived due process of the law for both property and liberty interests. The Tenth Circuit found that Mr. McDonald did not have a property interest in his continued employment, because he served at the pleasure of the mayor and as such was an at-will employee. He could not have had a property interest in continued employment because of his at-will status, and the district court correctly dismissed this claim. The Tenth Circuit reached a different outcome as to Mr. McDonald’s liberty interest in his good name and continued employment. The mayor said at a press conference that Mr. McDonald was terminated for sexual harassment, not because of allegations, thus effectively affirming the allegations in a public forum. The statements called Mr. McDonald’s good name into question, and Mr. McDonald has been unable to secure further employment due to the statements. The Tenth Circuit determined that Mr. McDonald’s liberty interest was infringed upon, and next turned to the question of whether he had a chance to clear his name at a proper name-clearing hearing. Because Mr. McDonald received no hearing at all on this issue, the Tenth Circuit found a serious deprivation of due process related to his protected liberty interest, and reversed the district court. However, the Tenth Circuit found that the mayor’s press secretary need not be named in her official capacity in the suit, since the mayor and the city were named. On remand, the proper parties for this issue are solely the mayor and the city.

Mr. McDonald also contended that his termination was a breach of his employment contract with the city. The Tenth Circuit disagreed, finding as above that his employment was at will, and his claim is not one for which relief can be granted. The Tenth Circuit likewise disposed of his claim regarding non-disclosure of personnel records under the Colorado Open Records Act, because there is no private right of action under CORA and he did not allege sufficient reason to amend his complaint.

Finally, the Tenth Circuit turned to Mr. McDonald’s defamation claim against Ms. Wise. The district court dismissed his defamation claim, finding qualified immunity for Ms. Wise, and that even if she were not immune, Mr. McDonald failed to allege a viable defamation claim. The Tenth Circuit disagreed with the trial court’s reasoning, finding instead that Ms. Wise was not entitled to qualified immunity since her actions were willful and wanton. Mr. McDonald’s complaint alleged sufficient facts to support an inference of willful and wanton conduct, including the numerous phone calls made to him by Ms. Wise after the date of the alleged sexual harassment, and he was entitled to a trial on the merits. As to the defamation claim, the Tenth Circuit found that Ms. Wise held no qualified privilege since she made the allegedly defamatory statements with actual malice, and the district court erred by concluding Ms. Wise was immune from liability.

The Tenth Circuit affirmed the district court’s dismissal of Mr. McDonald’s property interest due process claim, breach of employment contract claim, and CORA violation claim. The Tenth Circuit reversed the district court’s dismissal of Mr. McDonald’s liberty interest due process claim and defamation claim against Ms. Wise, and remanded for further proceedings.

Colorado Supreme Court: PERA Members Have No Continual Right to Cost of Living Adjustments

The Colorado Supreme Court issued its opinion in Justus v. State of Colorado on Monday, October 20, 2014.

Colorado Public Employee’s Retirement Association Pension Plan (PERA)—Cost-of-Living Adjustment—Contracts Clauses of U.S. and Colorado Constitutions.

In this decision, the Colorado Supreme Court determined whether Colorado PERA members have contractual rights for life without change to the cost-of-living adjustment (COLA) formulas in place at their respective retirements. On summary judgment, the district court ruled that PERA retirees had no such contract right to an unchangeable COLA formula.

The court of appeals disagreed. It determined that the retirees have a contract right, and remanded for further review to determine whether Senate Bill 10-001 violated the Contract Clauses of the U.S. and Colorado Constitutions.

The Court held that the 2010 PERA legislation did not establish any contract between PERA and its members entitling them to perpetual receipt of the specific COLA formula in place on the date each became eligible for retirement or on the date each actually retires. The judgment of the court of appeals was reversed and the trial court’s summary judgment order dismissing this case was upheld.

Summary and full case available here, courtesy of The Colorado Lawyer.

Tenth Circuit: Threat to Hire Permanent Replacements Not Enough to Invalidate Entire Lockout

The Tenth Circuit Court of Appeals issued its opinion in Teamsters Local Union No. 455 v. National Labor Relations Board on Wednesday, August 27, 2014.

Harborlite, Inc. locked out union members during a collective bargaining dispute. Harborlite threatened to hire permanent workers to replace the locked out union members, and the Teamsters brought a claim with the National Labor Relations Board. The NLRB ordered Harborlite not to make future threats of termination and to post a notice to that effect. Teamsters appealed, alleging that the NLRB should have held the entire lockout unlawful and awarded back pay.

The Tenth Circuit first addressed the Supreme Court’s recent ruling in NLRB v. Noel Canning, 134 S.Ct. 2550 (2014), and found it had jurisdiction, since the NLRB appointment at issue was made during a Senate recess that was longer than the period specified as problematic by the Court.

Turning to the merits of the appeal, the Tenth Circuit could not support the Teamsters’ contention that the lockout became unlawful when Harborlite threatened to hire permanent replacements. The threat did not cause the Teamsters to change their position, and it was not acted upon. A mere threat and nothing more was not enough to convert an otherwise legal lockout to an illegal one. The petition to review was denied.

Tenth Circuit: Jury Verdict and Attorney Fee Award Upheld in Employee Class Action

The Tenth Circuit Court of Appeals issued its opinion in Garcia v. Tyson Foods, Inc. on Tuesday, August 19, 2014.

Tyson employees were required to don and doff certain protective clothing before and after performing job duties. Tyson originally compensated only certain employees for 4 to 7 minutes of this “K-code” time, eventually changing its policy to compensate all employees for 20 to 22 minutes of K-code time. However, based Tyson’s own study, employees were uncompensated for approximately 29 minutes per shift based on the times they punched in and punched out versus actual compensation.

A group of Tyson employees brought class and collective actions against Tyson, seeking unpaid wages for pre- and post-shift activities. After a jury returned an award for the employees and an attorney fee award, Tyson unsuccessfully moved for judgment as a matter of law. Tyson appealed the district court’s judgment and denial of its motion for judgment as a matter of law. Tyson also argued the attorney fee award was excessive.

The Tenth Circuit addressed Tyson’s first argument – whether the evidence was sufficient to support the verdict – and found it was. The question for the jury was whether the K-code system had resulted in underpayment, and the Tenth Circuit found ample reason in the evidence to support the jury’s decision that it had, including Tyson’s own study. Tyson also challenged the proof of underpayment as to each class member. The Tenth Circuit rejected that challenge, because the proof was unnecessary, the jury could rely on representative evidence, and Tyson’s supporting cases are inapplicable.

The jury awarded less to plaintiffs than they requested. Tyson interpreted this to mean that the jury found some class members were appropriately compensated. The Tenth Circuit disagreed, finding the evidence supported a finding of undercompensation for all class members, and noting that Tyson’s argument was speculative.

Finally, the Tenth Circuit addressed the attorney fee award. The Fair Labor Standards Act provides a right to attorney fees to prevailing plaintiffs. The district court awarded over $3 million in attorney fees, despite the much lower awards to the plaintiffs. Because of ongoing class litigation in another county, the district court adopted a procedure whereby it reviewed the attorneys’ time records in camera, allowed disclosure of the hourly rate and number of hours worked, and allowed each side the chance to depose someone on the other side familiar with the billing process. Tyson objected to this process, instead requesting full discovery of billing records. The Tenth Circuit upheld the process and the award, finding good cause for the district court’s procedure and award.

The judgment was affirmed.

Colorado Supreme Court Reverses Years of Precedent in Softrock and Western Logistics

It is advantageous to employers to retain the services of independent contractors when possible. Contractors are not required to be covered by workers’ compensation insurance and employers need not pay unemployment tax out of the contractors’ wages. However, classifying workers as contractors has its risks; after an audit, the employer may be found liable for back taxes on workers who are found to be employees rather than contractors.

That is precisely what happened to Carpet Exchange in 1993, when the Colorado Court of Appeals issued its opinion in Carpet Exchange of Denver v. Industrial Claim Appeals Office, 859 P.2d 278 (Colo. App. 1993). The court of appeals analyzed C.R.S. § 8-70-115(1)(b) and, after applying the factors, decided that the workers in question were employees rather than contractors because they were not “customarily engaged in an independent trade, occupation, profession, or business related to the service performed.” Since then, courts have relied on this one-factor test to determine whether long-term workers are employees or contractors.

Industrial Claim Appeals Office v. Softrock Geological Services, 2014 CO 30 (Colo. May 12, 2014), reversed that precedent. In Softrock, the Colorado Supreme Court rejected the outside employment test as dispositive of whether a worker is an employee or an independent contractor, ruling instead that the totality of the circumstances must be considered and no single factor can be dispositive in deciding whether an individual is customarily engaged in an independent business or trade.

Michael Santo, lead counsel in Softrock, will present a lunchtime program on Friday, August 22, 2014 at the CLE offices to discuss Softrock‘s impact on employment law. Santo will also discuss Western Logistics, Inc. v. Industrial Claim Appeals Office, 2014 CO 31 (Colo. May 12, 2014), a related opinion that the supreme court delivered the same day as Softrock. Employment attorneys, business attorneys, and in-house counsel should attend this informative lunchtime program.

CLE Program: Independent Contractor or Employee? Softrock‘s and Western Logistics‘ Effect

This CLE presentation will take place on August 22, 2014. Click here to register for the live program and click here to register for the webcast. You can also register by phone at (303) 860-0608.

Can’t make the live program? Order the homestudy here — MP3 audio downloadVideo OnDemand

Tenth Circuit: Failure to Exhaust Administrative Remedies Resulted in Dismissal of ERISA Claim

The Tenth Circuit Court of Appeals issued its opinion in Holmes v. Colorado Coalition for the Homeless Long Term Disability Plan on Tuesday, August 12, 2014.

Lucrecia Carpio Holmes was employed by Colorado Coalition for the Homeless and suffered from a number of debilitating medical conditions. She applied for disability benefits through the Coalition’s employee benefit plan disability policy through Union Security Insurance Company. Union Security denied her claim, and Holmes appealed the denial on November 21, 2005. Union Security had 45 days within which to either overturn or uphold the denial, excluding certain tolling periods. Union Security issued its denial on April 7, 2006, 137 days after Holmes appealed. Included in each of Union Security’s denials was a document detailing the appeal procedure, which consisted of two levels of administrative appeal with Union Security prior to filing a civil action in district court.

Instead of filing a second appeal with Union Security, Holmes filed a civil action against the Coalition’s Long Term Disability Plan in the district court on April 28, 2008. The defendant was not aware of the appeal, and default judgment entered against it. Upon learning of the suit, Defendant removed the action to federal court and moved to have the default judgment set aside. The district court granted Defendant’s motion, ruling it had not been properly noticed in the lower court proceeding. Both parties filed cross-motions for summary judgment. While those motions were pending, Holmes filed a motion to stay decision, reopen discovery, and proceed to trial if necessary. The district court denied her motion and granted summary judgment to Defendant, holding that Holmes’s claim was barred because she failed to exhaust her administrative remedies. It found that although Union Security issued its second denial after 137 days, 67 of those days were attributable to Holmes, and Holmes had forfeited her right to enforce ERISA deadlines. The district court also held Union Security had complied with applicable ERISA notice and disclosure requirements. Holmes appealed.

The Tenth Circuit first evaluated Holmes’s argument that the district court erred by ruling she failed to exhaust her administrative remedies. Holmes argued that her Summary Plan Description failed to define the two-level review process, and alternatively she should be deemed to have exhausted her administrative remedies because Union Security failed to comply with ERISA’s timing and notice requirements. The Tenth Circuit addressed the language regarding administrative remedies contained in the plan and the Summary Plan Description, and determined that the administrative appeal process was contained in the plan by reference. Because Holmes failed to complete the administrative appeal process, district court review was barred.

The Tenth Circuit agreed with Holmes that Union Security failed to comply with ERISA’s timing and notice requirements; however, it found Holmes was not prejudiced by that failure. Although the Summary Plan Description failed to inform claimants of the review process, it incorporated by reference the letter detailing the review process that Union Security included with each denial.

The Tenth Circuit affirmed the district court’s dismissal.

Tenth Circuit: Ambiguities in Arbitration Agreement Must Be Resolved in Favor of Arbitration

The Tenth Circuit Court of Appeals issued its opinion in Sanchez v. Nitro-Lift Technologies, L.L.C. on Friday, August 8, 2014.

Miguel Sanchez, along with co-plaintiffs Shane Schneider and Eddie Howard, worked for Nitro-Lift Technologies in and around Johnston County, Oklahoma, servicing and monitoring oil rigs. At the beginning of their employment, they signed a “Confidentiality/Non-Compete Agreement.” They claim they were not allowed to read the document, ask questions, or have an attorney review it before signing. The agreement, which Nitro-Lift alleges is an employment agreement despite its title, contains a broad arbitration clause requiring arbitration for “any dispute, difference or unresolved question” between Nitro-Lift and the employee.

The employees brought suit against Nitro-Lift in the Eastern District of Oklahoma, alleging violations of the FLSA because they were forced to work more than forty hours nearly every week and did not receive overtime compensation from Nitro-Lift for the hours they worked in excess of forty hours per week. In response, Nitro-Lift filed a motion to dismiss and compel arbitration pursuant to the provision in the purported employment agreement, or, alternatively, a motion to stay pending arbitration. Plaintiffs argued the arbitration agreement was unenforceable as to their FLSA claims for a variety of reasons, their wage disputes did not fall under the scope of the arbitration clause, the arbitration clause’s fee-shifting provisions were impermissible as to their employment dispute, and the forum selection clause and application of commercial arbitration rules make the clause unenforceable because they would force employees to pay substantial costs they cannot afford. The district court denied Nitro-Lift’s motion to compel arbitration, ruling that the contract’s broad arbitration clause did not encompass wage disputes because the contract only applied to confidentiality and non-competition. Nitro-Lift filed an interlocutory appeal, and on the same day filed a new motion to dismiss based on plaintiffs’ amended complaint adding Howard and reasserting the same issues contained in its original motion. The district court denied Nitro-Lift’s second motion as a motion for reconsideration. Nitro-Lift timely appealed and the appeals were consolidated for Tenth Circuit review.

The Tenth Circuit first addressed the dispute regarding the applicability of the arbitration clause. The Tenth Circuit found a strong presumption in favor of arbitration, noting that any ambiguities must be resolved in favor of arbitration. Because the Tenth Circuit found ambiguity regarding whether the arbitration clause applied to the dispute at hand, it ruled that arbitration was required and reversed the district court’s denial of the motion to compel arbitration.

The district court did not address plaintiffs’ FLSA claims, and the Tenth Circuit declined to address them for the first time on review, instead remanding to the district court for determination of plaintiffs’ unresolved issues. The Tenth Circuit also left for the district court determination of whether the fee-shifting provision in the arbitration clause rendered the agreement unenforceable in light of U.S. Supreme Court and Tenth Circuit precedent. The Tenth Circuit also declined to address plaintiffs’ argument that Nitro-Lift’s willingness to waive the fee-shifting provision, the forum selection clause, and the rules governing arbitration constituted an impermissible unilateral contract amendment, instead leaving this issue for the district court’s determination.

The district court’s denial of Nitro-Lift’s motion to compel arbitration was reversed and the case was remanded for further findings consistent with the Tenth Circuit’s opinion.