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On August 9, 2019, the D.C. Office of Employment Services (DOES) took another step toward full implementation of D.C.’s Universal Paid Leave Amendment Act of 2016 (UPLA) by issuing proposed benefits regulations. In a recent post, we discussed generally the paid leave benefits eligible employees can receive from DOES under UPLA starting July 1, 2020 for new child bonding (8 weeks), to care for a family member with a serious health condition (6 weeks), or for the employee’s own serious health condition (2 weeks), up to a maximum of 8 weeks per year, and we explained the employer payroll tax collection process currently underway to fund the new program. The proposed benefits regulations address a number of benefits administration issues, including how employees will file claims for benefits, how employers will be notified of claims, how DOES will calculate benefits amounts, and the process for appealing claims denials.

In this post, we focus on one topic of particular interest to employers: what the proposed benefits regulations say about the interaction between UPLA benefits and employers’ own paid leave policies when they overlap. The proposed regulations make clear that employers are free to amend their own leave policies to account for UPLA benefits. However, the devil is in the details, and tricky coordination issues are left unresolved by the proposed rules.

Here are the key takeaways:

Employer leave policies do not impact the amount of UPLA benefits. DOES will not consider the availability of employer-provided paid leave benefits when calculating benefits available under UPLA. This leaves open the possibility that employees will be entitled to paid leave benefits from both the employer and DOES for the same time period. The DOES benefit will be calculated based on a formula that considers the employee’s average weekly wages from 4 of the last 5 quarters preceding the leave (the quarter with the lowest total earnings is excluded). The benefit amount will be a percentage of the employee’s average weekly wages, up to 90% for lower earning employees and a lower percentage for higher earning employees. For 2020, the DOES benefit may not exceed $1,000 a week.

Employers are permitted to coordinate their paid leave benefits with UPLA benefits, but the regulations provide no guidance on how to coordinate. The proposed regulations allow employers to coordinate their own paid leave benefits with UPLA benefits and state that employers may amend their existing or future policies at any time as they see fit. However, the proposed rules provide no guidance on how coordination is to be achieved. Coordination is generally understood to include rules to avoid duplication of benefits, including rules to avoid more than full pay (or some other level of intended pay) in a given week through means such as offsets, deductions, or sequencing.

Some of the proposed regulations will facilitate coordination of benefits. Except in emergencies, the proposed regulations require the employee to notify the employer in advance, in writing, of the need to use UPLA paid leave benefits, the type of leave benefits being requested, and their anticipated duration. DOES will notify the employer within 3 business days that a claim has been filed (and will request information from the employer). DOES is also required to inform the employer when a claim is approved, the start date, expected end date, whether the leave benefits will be continuous or intermittent, and if intermittent, the scheduled dates. DOES will not disclose to employers the amount of UPLA benefits the employee is receiving, but employers are permitted to require employees to disclose the amount as a condition of receiving employer paid leave benefits.

Some of the proposed rules may create practical difficulties for smooth coordination. DOES benefits may not begin for some time after a qualifying event, whereas employer paid leave might start sooner. Delays in DOES benefits will occur because, under the proposed regulations, employees may not submit UPLA claims until after the qualifying leave event, even when the need for leave is foreseeable, and DOES will not award benefits for leave taken before a claim is filed (except in exigent circumstances such as physical or mental incapacity). (Note that there is also a 7 day waiting period after the qualifying event during which no UPLA benefits apply). In addition, it will take DOES time to process claims. The proposed regulations state that initial claim determinations will be made within 10 business days, although this time period will be extended if additional information is needed to make the determination, and benefits payments will not begin until 10 business days after a claim is approved. Furthermore, if DOES denies a claim and the employee succeeds in getting the denial reversed on appeal, the employee may receive a DOES award after employer leave benefits have already been provided.

Employer policies may not interfere with employees’ UPLA rights. In coordinating employer and UPLA benefits, employers should bear in mind that the UPLA prohibits interference with an employee’s exercise or attempted exercise of rights to benefits provided in the Act.

The proposed benefits regulations are open for comments until September 9, 2019. It is possible that the final regulations will address coordination further. DOES is also continuing to offer paid leave webinars, during which additional guidance may be provided. See the Office of Paid Family Leave website for further details. Employers should begin reviewing their leave policies to determine whether to make revisions before UPLA benefits become available on July 1, 2020.

The debate about whether the Dynamex decision applies retroactively is alive again thanks to a reverse course by the Ninth Circuit Court of Appeals.  As we previously discussed in greater detail here, in April 2018, the California Supreme Court issued a groundbreaking decision in Dynamex that workers would be presumed employees unless they satisfied each prong of the dubbed “ABC test.”  One of the unsettled questions that remained following the Dynamex decision was whether the “ABC test” would apply only prospectively, or retroactively as well.  For almost a year after Dynamex and, as we previously covered, the Ninth Circuit seemingly laid this issue to rest in May 2019 when it held that Dynamex’s “ABC test” does indeed apply retroactively in its Vazquez v. Jan-Pro Franchising International, Inc. decision.

Less than three months after Vazquez, however, the Ninth Circuit appears to have done an about-face.  The Ninth Circuit withdrew its Vazquez opinion on July 22, 2019 and indicated that the California Supreme Court would be the final arbiter of the retroactivity issue of Dynamex’s “ABC test.”  Whether the Ninth Circuit’s latest move will serve as a precursor of things to come, or merely a brief respite for the inevitable, remains to be seen.  For now, employers and workers alike must again wait for the courts to resolve—for the final time—whether the Dynamex decision applies retroactively.

For more information about the classification of independent contractors, or any other legal issues in the workplace, contact the authors of this article or the Hogan Lovells lawyer with whom you work.


On July 31, 2019, the Ministry of Labor (the “ML”) published the Protocol for the Legitimation of existing Collective Bargaining Agreements (the “Protocol”).

The legitimation process should take place before May 1, 2023. Such process is independent from the annual reviews of the Collective Bargaining Agreements (“CBAs”) before the Labor Boards.

Please find below the main topics of the Protocol, which became effective on August 1, 2019.

Objective:  Establish rules and procedures for the legitimation of the existing CBAs.

Procedure:  The Union that executed the CBA must give notice to the ML, through its electronic system, with at least 10 days before the correspondent employees’ consultation.

Notice to the ML:  In addition to the information of the union that executed the CBA, the notification must contain:

  1.  The CBA file number and the authority in which it was filed.
  2. The employer’s corporate information.
  3. The number of unionized employees
  4. A list of employees with the right to vote, including the name and Unique Population Registration Code (CURP by its Spanish acronym).
  5. The main benefits established in the CBA.
  6. The date, time, and place in which the consultation will take place.

Consultation:  The Union may request the support from a public notary or the local authority to verify the Consultation process.

The voting format for the Consultation will be the ones generated and printed from the ML’s electronic system.

The voting will take place on the established date and time, guaranteeing a free, secret, personal, secure and pacific way for employees to cast their vote.

The Employer will not intervene in the voting process.

The results of the votes must be placed in a visible location at the workplace and must be informed through the ML’s electronic system.

The labor authority may verify the compliance of the Protocol’s requirements.

In the event that the ML does not issue observations or comments within the twenty (20) business days following the date in which the Consultation result was notified, the CBA will be considered legitimated.

Note: This Protocol will be valid until the incorporation of the Federal Center for Conciliation and Labor Registry.


Under the District of Columbia’s Universal Paid Leave Amendment Act of 2016 (UPLA), paid family and medical leave will soon be a reality in DC.  The DC paid leave program will be funded entirely by employer payroll tax contributions. [1]  The first tax contributions from employers are due July 31, 2019 (unless that deadline is extended), and benefits will be available to covered employees starting July 1, 2020.  The DC Department of Employment Services (DOES) has issued tax regulations establishing UPLA tax collection procedures for employers, and the Office of Paid Family Leave (OPFL) is offering webinars and town halls this month to answer employers’ questions about the collection process.  Benefits regulations for employers and employees are expected in the near future.

Here are the highlights of what we know, and don’t know, about the UPLA so far, and what employers should be doing to comply.

UPLA Overview 

Employees can receive up to 8 weeks of paid leave benefits for new child bonding, 6 weeks to care for a family member with a serious health condition, and 2 weeks for the employee’s own serious health condition, with a cap of 8 weeks of total paid leave benefits per year.  Benefits will be paid to employees by the DC government based on application by the employee.  Benefits will be determined on a sliding scale based on the employee’s income, up to 90% of weekly pay with a current cap of $1,000 per week, which will increase over time.  The law does not entitle employees to reinstatement at the end of leave, although they may have reinstatement rights under the federal Family and Medical Leave Act (FMLA) or the DC FMLA.

An employer is generally covered by the UPLA if the employer controls the wages, hours, or working conditions of one or more workers for whom it pays DC unemployment insurance (UI) taxes, regardless of the employer’s size or whether it already has a paid leave program.  Employees are generally entitled to UPLA benefits if they spend more than 50% of their working time in DC or spend a substantial amount of time working in DC and no more than 50% in any other single jurisdiction, regardless of whether they live in DC.

Making Tax Payments

The DC paid leave program will be funded by a 0.62% tax on covered employees’ gross wages for each calendar quarter, payable by the employer at the end of the first month following the end of the quarter.  Because tax collections began on July 1, 2019, employers must pay taxes on Q2 2019 (April-June 2019) wages by July 31, 2019.   It is possible that OPFL will push back this deadline if technical difficulties arise with the tax collection process, but as of now the deadline remains in effect, and employers should act accordingly.

Employers with 5 or more employees must submit their tax contributions for the paid leave program electronically through ESSP, the DOES Employer Self Service Portal.  This is the same portal that employers use to pay UI taxes.  Employers can use third-party administrators to process the payments if they have a power of attorney form on file with ESSP.  The amount owed is based on the quarterly wage report form (Form UC-30) that employers submit for UI taxes.  Once a wage report is submitted, the ESSP automatically calculates the quarterly paid leave contribution.  If an employee does not meet the UPLA coverage requirements due to the limited nature of the employee’s work in DC, the employer can seek to except the employee’s wages from its paid leave tax obligation for the quarter.  OPFL’s instructions for requesting exceptions indicate that for now, the paid leave tax must be paid in full for all employees included in the UI wage report, and employers will be reimbursed for excepted employees later.

Employee Notification Requirements

OPFL will issue a paid leave notice that employers must post and send to remote personnel by January 1, 2020.  Employers will also be required to notify employees of their UPLA rights and obtain acknowledgments at the time employees are hired, annually, and when the employer becomes aware that an employee needs leave, but it is unclear when these requirements  go into effect.

Impact on Employer Leave Plans

The UPLA states that paid leave benefits run concurrently with FMLA and DC FMLA leave and that individuals cannot receive UPLA benefits while they are receiving long-term disability payments or unemployment compensation benefits.  Issues concerning how to coordinate UPLA benefits with an employer’s own voluntary paid leave benefits policies are not yet resolved, and we hope that the benefits regulations expected in the upcoming months will provide more information.  In a recent webinar, OPFL indicated that employers cannot restrict employees from applying for UPLA benefits but will be able to modify their own paid leave plans to ensure that employees do not receive more than 100% of their regular weekly pay—for example, by topping off UPLA benefits with employer-provided benefits, or by providing additional benefits after UPLA benefits are exhausted.

It is time now to start thinking about how UPLA benefits will mesh with your current leave and paid benefits policies.


[1]              This is unlike other jurisdictions.  For example, California’s paid family leave and disability insurance programs are paid for entirely by workers through payroll deductions.  In New York, workers cover the cost of paid family leave, and workers and employers share the cost of temporary disability insurance.

Beginning on July 1, 2019, Virginia employers must, for the first time, disclose certain employment records of current and former employees upon request. See Va. Code § 8.01-413.1. This blog post answers some essential questions about the new law.

What does the law require an employer to disclose? The law states that upon request of a current or former employee, or employee’s attorney, an employer must disclose: “a copy of all records and papers retained by the employer in any format, reflecting (i) the employee’s dates of employment with the employer; (ii) the employee’s wages or salary during the employment; (iii) the employee’s job description and job title during the employment; and (iv) any injuries sustained by the employee during the course of the employment with the employer.”

When must the disclosure be made? Employers must provide this information within 30 days of the request. If unable to meet this deadline, the employer must notify the requester in writing of the purpose of the delay and disclose the materials within 30 days of its written notification.

Are there any exceptions to disclosure? In certain limited circumstances, the records must be furnished to the employee’s attorney or authorized insurer rather than the employee—including where the employee’s doctor has included in the employee’s records a statement that furnishing the records to the employee would be reasonably likely to endanger the life or physical safety of the employee, or where the records make reference to another person (other than a health care provider) and the access requested would be reasonably likely to cause substantial harm to such referenced person.

Who bears the cost of the disclosure? The employer may charge the requester a reasonable fee for making copies and processing the request.

What is the consequence if an employer fails to comply? Upon failure of any employer to comply with the new law, the employee or his attorney may demand the documents by subpoena. If the employer’s noncompliance is willful, the court may award damages for all expenses incurred by the employee to obtain their employment record, reasonable attorneys’ fees, and a refund of the fees charged by the employer to the employee for fulfilling the request. “Willful” noncompliance means: “(i) . . . failing to respond to a second or subsequent written request, properly submitted by the employee in writing, without good cause or (ii) . . . imposing a charge in excess of the reasonable expense of making the copies and processing the request for records or papers.”

When does the law take effect? July 1, 2019.

What should employers do to comply? Virginia employers should consider revising any policy that may prohibit employees from obtaining access to any personnel records to allow the disclosures required by this law. Employer should also consider establishing a process for timely responding to employee requests for the records covered by this law, including designating who will be tasked with determining what records must be disclosed and gathering and providing this information.

* * * *

For more information regarding this law, please speak to the author listed in this article or the Hogan Lovells lawyer with whom you work. A special thanks to summer associate Kellie Majcher for her assistance with this blog post.

On June 14, 2019, the United States Court of Appeals for the District of Columbia Circuit rejected the argument that a university should be entitled to special academic deference in employment discrimination claims concerning denial of tenure brought under Title VII of the Civil Rights Act of 1964 (“Title VII”). Mawakana v. Bd. Of Trustees of the Univ. of the Dist. Of Columbia, No. 18-7059 (D.C. Cir. June 14, 2019).

In Mawakana, an African American professor brought suit after he was denied tenure by the University of the District of Columbia (“UDC”). He failed to receive a recommendation for tenure at each step of UDC’s process, including from the relevant faculty committees, the dean and the provost, as well as in the final decision by the university president. Mawakana sued UDC for, among other things, race discrimination under Title VII and the District of Columbia Human Rights Act (“DCHRA”). The district court granted UDC’s motion for summary judgment and dismissed Mawakana’s claims, reasoning that it was required to accord “heightened deference” to UDC’s “academic decisions.” Like the district court here, some courts in prior decisions, including in the District of Columbia, have suggested that they are reluctant to find discrimination in faculty tenure or promotion decisions. See, e.g., Okruhlik v. Univ. of Arkansas, 395 F.3d 872, 879 (8th Cir. 2005) (“The academic setting and complex nature of tenure decisions, however, distinguishes them from employment decisions generally.”); Elam v. Bd. of Trustees of Univ. of D.C., 530 F. Supp. 2d 4, 17 (D.D.C. 2007) (citing Okruhlik for the proposition that “a court must be particularly wary of second-guessing a university’s decisions concerning faculty members”); Jiminez v. Mary Washington Coll., 57 F.3d 369, 376 (4th Cir. 1995) (“We commence with the premise that while Title VII is available to aggrieved professors, we review professorial employment decisions with great trepidation.”).

The D.C. Circuit’s analysis of academic deference

The D.C. Circuit reversed the district court’s grant of summary judgment to UDC, holding that United States Supreme Court precedent “and the concept of academic freedom do not entitle a university to special deference in Title VII tenure cases.” Although the Court acknowledged that the Supreme Court in University of Michigan v. Ewing, 474 U.S. 214 (1985) held that courts must defer to universities in reviewing the “substance of a genuinely academic judgment” made in “good faith,” the question in a Title VII case is “whether the employer acted in good faith.” More specifically:

Ewing dictates that a court cannot second-guess a university’s decision to deny tenure if that decision was made in good faith (i.e., for genuinely academic reasons, rather than for an impermissible reason such as the candidate’s race) . . . . A Title VII claim requires a court to evaluate whether a university’s decision to deny tenure was made in good faith (i.e., for academic reasons rather than for an impermissible reason such as the applicant’s race).

In a footnote, the court, surveying a number of cases across the country, highlighted that many (but not all) other courts have applied “the same Title VII standard to faculty members as to other discrimination plaintiffs,” and that upon a “close examination,” even the cases that “express[ed] solicitude” related to faculty employment decisions effectively were not applying a different Title VII standard.

The court also reversed summary judgment on Mawakana’s claims under the DCHRA, noting that the legal analysis of a race discrimination claim under Title VII and the DCHRA is the same.

Having disposed of the argument that UDC is entitled to academic deference; the D.C. Circuit viewed the evidence in the light most favorable to the professor, as required at the summary judgment stage, and held a reasonable jury could find that race was a motivating factor in UDC’s decision to deny Mawakana tenure. In reaching this decision, the court was heavily influenced by evidence concerning the dean, who in the court’s view, while not the ultimate decision-maker, was a proximate cause of the ultimate negative decision. The court relied on evidence presented by the professor, including that the dean:

  • sometimes applied stricter review criteria to black applicants for tenure, such as disfavoring co-authored works for black applicants but not white applicants;
  • supported every white applicant for tenure during her time as dean but raised concerns about more than half of the black applicants;
  • had dissuaded two black faculty from applying for tenure; and
  • changed her position on issues that were subsequently relevant to the tenure decision, such as originally speaking favorably of an article by the professor and later stating that it did not meet tenure standards.

Applying the Mawakana decision

While the D.C. Circuit’s decision rejects the concept of special deference in cases involving academic judgment, it is important to underscore the limits of the Mawakana holding. While the D.C. Circuit has held that courts should not place a “thumb on the scale” of a university in an employment discrimination simply because of “academic deference,” the case does not mean that an employment discrimination plaintiff can prevail on a discrimination claim by convincing a court that a university’s academic judgment was simply incorrect or unwise. If it can be shown that the university made a genuine academic decision—just like if a non-university employer has made a genuine business decision—a plaintiff cannot prevail (or survive summary judgment) simply by second guessing academic (or business) judgment. Courts have often stated that they do not “serve as a super-personnel department that reexamines an entity’s business decisions.” Barbour v. Browner, 181 F.3d 1342, 1346 (D.C. Cir. 1999). This principle applies equally in and out of the higher education context. Additionally, the D.C. Circuit was careful to point out that, even absent academic deference, it may be “especially difficult” as a practical matter for an employment discrimination plaintiff to succeed in challenging a tenure decision, given, among other things, the complexity of the decision and the numerous decision makers involved.

Furthermore, the D.C. Circuit did not address whether its holding extends beyond employment discrimination cases. Therefore, the court’s decision does not necessarily preclude an academic deference argument in another context, such as in a breach of contract case. See Brown v. The George Washington Univ., 802 A.2d 382, 385 (D.C. 2002) (granting summary judgment on breach of contract claim to university that did not promote professor or renew her contract; explaining that the court must “proceed with particular caution” and “only rarely assume academic oversight, except with the greatest caution and restraint, in sensitive areas as faculty appointment, promotion, and tenure” (quotation marks omitted)); Alden v. Georgetown Univ., 734 A.2d 1103, 1109 (D.C. 1999) (granting summary judgment on breach of contract claim to university that dismissed student from school, emphasizing the heavy burden a plaintiff faces in an academic dismissal case due to the need to defer to a university’s academic judgment).

Nonetheless, the Mawakana decision makes clear that universities should strive in the tenure decision process to:

  • have clear policies and criteria;
  • apply the policies and criteria consistently and evenhandedly;
  • treat similarly situated people similarly; and
  • assure that those involved in the different stages of the process understand their responsibilities and the university’s anti-discrimination policies.

For more information on the Mawakana case or any other employment or higher education law issues, please contact one of the authors of this article or the Hogan Lovells lawyer with whom you work.



The Hogan Lovells Global employment team is holding a webinar on September 26th at 10 am Eastern Time to highlight current trends in the enforcement of covenants and protection for confidential information in France, Germany, Italy, the Netherlands, Spain, the UK and the U.S. We will discuss the key issues and what they mean in practice for multi-national employers.

Many multi-national employers would like to take a global approach to protecting confidential information and shielding their business against competition from former employees. However, local laws inevitably constrain how far this can be achieved. Some countries require employees to be compensated for entering into non-compete agreements. What is permitted in one jurisdiction in terms of the scope or duration of a restriction may not be enforceable in another.

Please join us for a lively discussion on these key issues affecting your business.

Click here to RSVP.

We previously reported here that in April of this year, a federal judge set September 30, 2019 as the deadline for covered employers (i.e., having at least 100 employees) to submit pay data in Component 2 of their EEO-1 reports. This month, the Equal Employment Opportunity Commission (EEOC) posted its online filing portal to be used for Component 2 data submissions, which is a different portal than that used for Component 1 submissions. This portal is located at and contains helpful guidance materials regarding the Component 2 survey. The portal is not yet open for submissions. On July 12, the EEOC will begin providing employers with log-in information via email and/or US Postal Service, and on July 15 the portal will open.

By September 30, 2019, covered employers must use this portal to submit for calendar years 2017 and 2018 the total number of full-time and part-time employees in each established race/ethnicity and gender category, in each of 12 pay bands established by the EEOC, for each EEO-1 job category. A sample EEO-1 Component 2 form demonstrating the information to be submitted is located here. To determine an employee’s pay, an employer must use W-2 box 1 income. Employers must also report for both years the number of hours worked (in the aggregate) by all of the employees accounted for in each of the 12 pay bands for each EEO-1 job category. For non-exempt employees, the employer reports the total number of hours worked for the entire calendar year. For exempt employees, the employer can either provide actual hours worked if it maintains such information, or use a 40 hour-per-week proxy for full-time workers or a 20 hour-per-week proxy for part-time employees, multiplied by the number of weeks they were employed during the year.

Employers should prepare in advance of the September 30 deadline by collecting and confirming for each full-time and part-time employee:

  • Race for 2017 and 2018 snapshot period
  • Gender for 2017 and 2018 snapshot period
  • 2017 W-2 box 1 income
  • 2018 W-2 box 1 income
  • 2017 total hours worked
  • 2018 total hours worked

The EEOC explains on its portal that the 2017 and 2018 snapshot periods are an employer-selected pay period between October 1 and December 31 of 2017 and 2018, respectively. The EEOC also states that employers can choose different snapshot periods for the two years.

As the September 30 deadline approaches, employers should continue to watch the EEOC’s portal for updates and additional guidance. Employers should also be prepared for the possibility of a decision by the U.S. Court of Appeals for the D.C. Circuit that could change the pay data submission requirements. The federal government filed an appeal with the D.C. Circuit seeking to overturn the court order requiring the submission of pay data as part of the EEO-1 report but, as of the date of this post, has not requested a stay of the September 30, 2019 due date, nor has the government filed any brief or motion in the appeal so far.

For more information about EEO-1 reporting, or any other legal issues in the workplace, contact the authors of this article or the Hogan Lovells lawyer with whom you work.

Last week, the New York State Legislature passed a bill prohibiting employers from asking about the salary history of prospective and current employees. Aimed at curtailing wage discrimination and pay disparity, the bill applies broadly. The bill, in its current form, applies to all employers along with recruiters or similar entities that connect applicants with employers.

Under the bill, an employer may not consider wage or salary history in deciding whether to (1) offer employment, (2) promote or (3) determine an employee’s wage or salary. It would also prohibit making disclosure of wage or salary history a pre-requisite for an interview, consideration for an offer, continuing employment, or a promotion.

The only way an employer may obtain this information is if the individual voluntarily offers the information without prompting.  In such an instance, the employer may inquire and confirm the wage or salary history.  The bill includes an anti-retaliation provision, and permits aggrieved  applicants/employees to seek damages, injunctive relief and attorney’s fees.

Governor Cuomo has expressed public support for this measure, and will likely sign it into law.  We will be sure to keep you updated.

On June 26, 2019, Judge Denise Cote, of the Southern District of New York, granted a motion to compel arbitration of an employment discrimination, retaliation and sexual harassment claim—despite recently passed NY law, NY CPLR § 7515 (“Section 7515”), invalidating provisions that require employees to arbitrate sexual harassment claims.

Judge Cote observed that Section 7515 applies only to the extent not “inconsistent with federal law” and that the arbitration provision at issue was to “be governed by and interpreted in accordance with the Federal Arbitration Act (FAA).”  Quoting the U.S. Supreme Court precedent, Judge Cote further recognized that “the FAA reflects both a liberal federal policy favoring arbitration and the fundamental principle that arbitration is a matter of contract.”  Ultimately, the Court held that applying Section 7515 to invalidate the arbitration agreement “would be inconsistent with the FAA” and that the FAA’s strong presumption that arbitration agreements are enforceable . . . is not displaced by” the NY law.

This decision, though it may be appealed, is a significant development for employers who wish to continue to use mandatory arbitration agreements in the wake of Section 7515.