Earlier today, the Second Circuit issued a summary order affirming a district court’s decision that an employer had not waived its right to arbitrate by waiting four months to file a motion to compel arbitration in response to the filing of a lawsuit by an employee. See Sutherland v. Ernst & Young, LLP, No. 13-4868-cv (2d Cir. Jan. 20, 2015) (click here for a copy of the decision).
The Second Circuit explained that three factors should govern a waiver analysis: “(1) the time elapsed from when litigation was commenced until the request for arbitration; (2) the amount of litigation to date, including motion practice and discovery; and (3) proof of prejudice.” The Second Circuit found the plaintiff employee had demonstrated no prejudice arising from the employer’s four-month delay in asking for arbitration, and during this time period, neither party had engaged in substantial motion practice or discovery.