SCOTUS Holds Class Action Waivers Do Not Violate the NLRA 

confirm arbitration agreement


From Lexology discuss the Supreme Court’s decision to uphold the inclusion of class action waivers in arbitration agreements. This is important for independent contractor agreements also because arbitration agreements with class action waivers protect employers when they use independent contractors also. Sara and Ryan write:

In a major win for employers, the U.S. Supreme Court held that arbitration agreements with class action waivers do not violate the National Labor Relations Act (“NLRA”). As reported on the Hunton Employment & Labor Perspectives Blog, the Supreme Court’s narrow 5-4 decision paves the way for employers to include such waivers in arbitration agreements to avoid class and collective actions.

The case, Epic Systems Corp. v. Lewis, presented a rather straightforward, yet hotly disputed question—whether class action waivers violate employees’ rights under Section 7 of the NLRA’s catch-all provision, which permits employees to engage in “other concerted activities for the purpose of…other mutual aid or protection.” 29 U.S.C. § 157.

In resolving this issue, the Supreme Court was forced to balance the Federal Arbitration Act’s requirement to “respect and enforce agreements to arbitrate” with Section 7’s rights to engage in “other concerted activities.” The Supreme Court held that Section 7’s catch-all provision referred to organization-related activities similar to those listed in the statute—not joining class litigation.

As held by the Court, “[the NLRA] does not express approval or disapproval of arbitration. It does not mention class or collective action procedures. It does not even hint at a wish to displace the Arbitration Act—let alone accomplish that much clearly and manifestly, as our precedents demand.”

The decision repeatedly cited GC Memorandum 10-06, authored by Ronald Meisburg, the National Labor Relations Board’s (“NLRB’s”) then-General Counsel and current Special Counsel at Hunton Andrews Kurth LLP. In this memorandum penned eight years ago, Meisburg took the now-adopted position that the NLRA does not bar such class waivers.

The case resolves a circuit split that had been brewing for six years. In 2012, a plurality of the NLRB first held that class action waivers violated Section 7. See D.R. Horton, 357 NLRB 2277 (2012). The Sixth, Seventh and Ninth Circuits followed the NLRB’s lead, while the Second, Fifth and Eighth Circuits found such waivers to be valid.

Read the full story at SCOTUS Holds Class Action Waivers Do Not Violate the NLRA – Lexology

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