“The new norm of social distancing, and a recent decision out of the Eleventh Circuit Court of Appeals, are changing the way arbitrations are conducted. Now is the time to update the arbitration provisions in your contracts to take advantage of these changes the next time you have to arbitrate a dispute,” writes Henry R. Chalmers in Arnall Golden Gregory’s News & Insights.

“The standard arbitration hearing has always involved the parties, attorneys, witnesses, and arbitrators together in the same room, similar to an informal trial setting. The COVID-19 pandemic may change that for the foreseeable future. Just as businesses are transitioning away from in-person conferences and towards Zoom meetings, so too are arbitration hearings.”

“The Rules for many arbitration tribunals—like the American Arbitration Association and JAMS—allow arbitrators to decide whether to hold hearings in person or via video conference, unless the parties have agreed otherwise. So, the next time you negotiate a contract with an arbitration provision, think about whether it would be to your advantage to require that disputes be arbitrated in person or remotely, then draft that into the contract.”

Chalmers provides a few things to consider in making this decision.

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“Companies that utilize third-party staffing vendors should take stock of the Fifth Circuit’s decision in Hiser v. NZone Guidance, L.L.C. The March 24, 2020 opinion, applying Texas law, reinforces that both contract language, and keeping such language up-to-date, is critical for navigating the legal landscape of company relationships with vendors, including enforcing arbitration provisions,” write A. John Harper III and Paige A. Cantrellnin Littler’s News & Analysis.

“In this case, the defendant NZone contracted with the plaintiff and other workers as independent contractors via RigUp, Inc., a workforce bidding platform. The plaintiff brought class claims against the defendant for violations of the Fair Labor Standards Act (FLSA) on behalf of himself and other workers similarly situated.  RigUp was not named as a defendant, but was alleged to be a joint employer with NZone.”

“The workers entered into an agreement with RigUp allowing them to use RigUp’s on-line platform, which contained an arbitration provision (the ‘RigUp Agreement’). NZone moved to compel arbitration of the FLSA claims pursuant to that agreement.  The RigUp Agreement stated that arbitration was to be used to ‘resolv[e] disputes between you and RigUp,’ and that ‘[a]ny arbitration between you and RigUp will be settled under the Federal Arbitration Act.’  The RigUp Agreement further stated that either ‘you or RigUp may commence an arbitration proceeding.'”

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