Mackall, Crounse & Moore, PLC has joined Dewitt Ross & Stevens S.C.

The newly formed DeWitt Mackall Crounse & Moore S.C. will provide clients with enhanced legal services
and efficiencies as well as access to more than 100 attorneys practicing in nearly 30 areas of
law in Wisconsin and Minnesota.

Dismiss this message


News & Education

Back to Employment Law News Feed

Filter by:

Not So Fast: You Mean There’s A Potential Downside to Class Action Waivers In Employment Arbitration Agreements?

For a number of years now, an increasing amount of employers have adopted policies requiring their employees (or at least certain subsets of their employees) to enter into binding arbitration agreements that contain class action waivers.  Adding fuel to the fire, the United States Supreme Court effectively put its stamp of approval on this practice in Epic Systems Corp. v. Lewis, 584 U.S. ___, No. 16-285 (2018), and many employers that previously abstained from the practice decided to jump in with both feet.  Among other potential benefits, employers and management-side employment attorneys (including me) believe that class action waivers can act as a strong deterrent against employees/independent contractors getting involved in employment-related legal actions.   

Still, class action waivers are not without potential drawbacks.  Take the recent example of Terrell Abernathy, et al., v. DoorDash, Inc., Case No. C 19-07545, out of the United States District Court for the Central District of California.  In this case, DoorDash, an online food delivery service company based in California, required its independent contractor delivery drivers to enter into agreements in which they agreed to resolve disputes through arbitration, and waived any rights they may have had to address legal claims through class or collective actions.  In the event of a dispute, the agreements required the parties to pay certain arbitration filing fees - $300 for a driver, and $1,900 for DoorDash.  

Somehow, someway, a plaintiff’s-side law firm (Keller Lenkner LLC in Chicago) managed to sign up over 5,000 of DoorDash’s delivery drivers as clients.  Recognizing that the arbitration agreements and class action waiver clauses were likely enforceable, the firm cobbled together the $300 filing fee for each of the drivers (over $1.5 Million in total), and attempted to initiate over 5,000 separate arbitration actions with the AAA.  In a reversal of the usual position of the parties to an independent contractor versus employer dispute, DoorDash refused to pay its portion of the contractually-required arbitration filing fees, which would have totaled close to $12 Million, asserting that there were significant deficiencies in the drivers’ filings.  In response, in yet another reversal of the usual positions of the parties, the plaintiffs filed an action in federal court to compel the ridiculous number of individual arbitrations.  

Although the court, through Judge William Alsup, determined that there were problems with the arbitration demands of a certain, relatively small, number of the drivers, it was clearly unimpressed with DoorDash’s efforts to avoid arbitration, and granted the motion to compel arbitration as to 5,010 of the plaintiffs.  In reaching this decision, Judge Alsup stated the following: 

For decades, the employer-side bar and their employer clients have forced arbitration clauses upon workers, thus taking away their right to go to court, and forced class-action waivers upon them too, thus taking away their ability to join collectively to vindicate common rights. The employer-side bar has succeeded in the United States Supreme Court to sustain such provisions. The irony, in this case, is that the workers wish to enforce the very provisions forced on them by seeking, even if by the thousands, individual arbitrations, the remnant of procedural rights left to them. The employer here, DoorDash, faced with having to actually honor its side of the bargain, now blanches at the cost of the filing fees it agreed to pay in the arbitration clause. No doubt, DoorDash never expected that so many would actually seek arbitration. Instead, in irony upon irony, DoorDash now wishes to resort to a class-wide lawsuit, the very device it denied to the workers, to avoid its duty to arbitrate. This hypocrisy will not be blessed, at least by this order.

*       *       *

The DoorDash circumstances may very well be extreme.  Nevertheless, the decision should act as a good reminder for all employers to avoid blindly adopting class action waivers in arbitration agreements.  Instead, employers should perform as thorough a review as possible to determine whether such waivers are the most appropriate approach for them and, if so, how best to draft the waivers to protect against the scenario currently facing DoorDash, and similar nightmare situations.  

Please contact John Gardner or any other member of DeWitt’s Employment Relations practice group with any questions regarding the use of arbitration agreements and/or class action waivers.

About the Author

John Gardner is an attorney practicing out of our Madison office. He is the Chair of the Labor & Employment Relations practice group. He is also a member of the Litigation practice group. Contact John by email or by phone at (608) 252-9322.

Our Locations

Greater Milwaukee - Get Directions

Green Bay - Get Directions

Madison - Get Directions

Minneapolis -Get Directions



Get to know us

DeWitt LLP is one of the ten largest law firms based in Wisconsin, with an additional presence in Minnesota. It has more than 120 attorneys practicing in Madison, Metropolitan Milwaukee and Minneapolis in over 30 legal practice areas, and has the experience to service clients of all scopes and sizes.


We are an active and proud member of Lexwork International, an association of mid-sized independent law firms in major cities located throughout the Americas, Europe and Asia and an active member of SCG Legal, an association of more than 140 independent law firms serving businesses in all 50 state capitals and major commercial centers around the world.


Super Lawyers 2020
Best Lawyers 2013 – 2020
Compass Award 2012
Top 100 Lawyers: National Trial Lawyers Association Best in 2020


While we would like to hear from you, we cannot represent you until we know that doing so will not create a conflict of interest. Accordingly, please do not send us any information about any matter that may involve you until you receive a written statement from us that we represent you (an “engagement letter”). You will not be a client of the firm until you receive such an engagement letter.

The best way for you to initiate a possible representation is to call DeWitt LLP at 608-255-8891. We will make every effort to put you in touch with a lawyer suited to handle your matter. When you receive an engagement letter from one of our lawyers, you will be our client and we may exchange information freely.

Please click the “OK” button if you understand and accept the foregoing statement and wish to proceed.