EVERGLADES COLLEGE, INC., d.b.a. Keiser University, d.b.a. Everglades University, Petitioner-Cross Respondent,
NATIONAL LABOR RELATIONS BOARD, Respondent-Cross Petitioner, LISA K. FIKKI, Intervenor-Respondent.
Petitions for Review of a Decision of the National Labor
Relations Board Agency No. 12-CA-096026
MARTIN and HULL, Circuit Judges, and RESTANI, [*] Judge.
2015, a three-member panel of the National Labor Relations
Board ("NLRB") concluded that Everglades College,
Inc. ("Everglades") violated the National Labor
Relations Act by (1) maintaining and enforcing an employment
agreement that required its employees to individually
arbitrate employment-related claims and that waived its
employees' rights to file class or collective action
lawsuits against Everglades; (2) maintaining and enforcing an
employment agreement that caused Everglades employees to
reasonably believe that they were prohibited from filing
unfair labor charges with the NLRB; and (3) unlawfully
discharging one of its employees, Lisa K. Fikki, for refusing
to sign its unlawful employment agreement. Everglades
petitioned this Court to review the NLRB panel's order,
and the NLRB filed a cross-application for enforcement of the
NLRB panel's order. Fikki also filed a motion to
intervene in the case, which this Court granted.
careful review, and with the benefit of oral argument, we (1)
deny the NLRB's cross-application for enforcement, (2)
grant Everglades' petition for review, and (3) reverse in
part and remand in part the NLRB panel's order as set
forth in this opinion.
13, 2008, Lisa Fikki began working as a graduate admissions
counselor for Everglades, a private, non-profit university in
Fort Lauderdale, Florida. In early 2009, Everglades decided
to implement mandatory arbitration as part of its personnel
policies and procedures and required its existing employees,
including Fikki, to sign a document titled,
"Confidentiality, Non-Solicitation, and Arbitration
Agreement." Fikki signed this agreement in 2010.
2011, Everglades did away with its paper employment
agreements and adopted electronic personnel records for all
of its employees, which included an electronic document
setting forth employment terms and containing an arbitration
clause. On June 15, 2012, Everglades sent an email to all of
its employees requiring them to complete a
"re-boarding" process in order for Everglades to
move all of its personnel files to an electronic format.
Everglades' e-mail asked all existing employees to
complete the re-boarding process within one week, by June 22,
2012. The re-boarding process required employees, among other
things, to sign an arbitration agreement, which included the
following class-or collective-action waiver and required that
employment disputes be resolved exclusively through
individualized arbitration rather than court litigation, as
Arbitration of Claims. Any controversy or claim
arising out of or relating to Employee's employment,
Employee's separation from employment, and this
Agreement, including but not limited to, claims or actions
brought pursuant to federal, state or local laws regarding
payment of wages, tort, discrimination, harassment and
retaliation, except where specifically prohibited by law,
shall be referred to and finally resolved exclusively by
binding arbitration in Fort Lauderdale, Florida, in
accordance with the Employment Law Arbitration Rules of the
American Arbitration Association, and judgment on the award
rendered by the arbitrator may be entered in any court having
jurisdiction thereof. Notwithstanding the above, Employee
agrees that there will be no right or authority, and hereby
waives any right or authority, for any claims within the
scope of this Agreement to be brought, heard or arbitrated as
a class or collective action, or in a representative or
private attorney general capacity on behalf of a class of
persons or the general public. Filing and arbitration fees
shall be in accordance with the arbitration rules and any
applicable laws. The arbitrator shall have the authority to
apportion the filing fee and costs of arbitration with the
presumption that the prevailing party shall be entitled to
recover all legitimate costs. Unless provided by statute to
the contrary, each party shall bear its/his/her own
21, 2012, Fikki responded to Everglades' email, asking if
she could print the re-boarding documents and have them
reviewed. Everglades agreed to Fikki's request but
reminded Fikki of the June 22, 2012 re-boarding deadline and
asked her to notify Everglades if she needed more time.
26, 2012, Everglades sent Fikki (and two other Everglades
employees) an email, asking them again to complete the
re-boarding process given the June 22, 2012 deadline. Fikki
replied that she needed more time to review the documents.
June 27, 2012, Everglades held mandatory meetings for those
employees who had not yet completed the re-boarding process.
During the meetings, Fikki told Everglades officials that she
wanted to obtain legal advice regarding the documents. Dr.
Arthur Keiser, Everglades' Chancellor, told Fikki that
she could have more time to complete the re-boarding process
so long as she could verify by June 29, 2012 that she had
scheduled an appointment with an attorney.
contacted an attorney on June 27, 2012, seeking review of the
re-boarding documents. On June 29, 2012, Fikki provided
Everglades with a letter from the attorney stating that Fikki
was scheduled to meet with the ...