Employer waived its right to compel arbitration

[Video] We know that courts will enforce an arbitration clause in an employment agreement. We also know that active participation in a lawsuit can waive that right.

Here we have a case out of the District of Columbia. An ex-employee sued claiming employment discrimination and the employer filed a motion to dismiss, another motion to dismiss trying to move the case to the Philippines, filed an answer with 23 affirmative defenses, and agreed to a very lengthy discovery process.

Five months after the suit was filed the employer filed a motion to compel arbitration. And they had no explanation for that five month delay.

So the court held that this was a waiver. TRG Customer Solutions v. Smith (Dist of Columbia 04/30/2020) [PDF].

The court couldn't figure out whether this employer simply didn't realize until too late they had the right to arbitrate, or whether they simply waited until it was clear they couldn't get a dismissal. And the court talked about the problem of gamesmanship and manipulation.

In any event the employer waived its right to arbitrate, and this case is going to stay in court.