Employment Law Update: By Mark E. Spund, Esq.

Many employers now require their employees to sign mandatory arbitration agreements which include a class action or collective action waiver.

On January 13, 2017, the U.S. Supreme Court agreed to hear three cases stemming from the National Labor Relations Board’s 2012 decision in D.R. Horton Inc., holding that class action waivers infringe on an employee’s rights under Section 7 rights of the National Labor Relations Act (“NLRA”) to engage in protected activity.

The three cases are: Murphy Oil, where the Fifth Circuit Court of Appeals held that mandatory waivers do not violate the NLRA; and Epic Systems and Ernst & Young, where both the Seventh and Ninth Circuits, respectively, upheld the NLRB’s decision that mandatory waivers do violate the NLRA.

The Supreme Court has already ruled on the enforceability of arbitration agreements under the Federal Arbitration Acts, upholding class action waivers in the consumer area.

Oral arguments are scheduled for the spring and a decision should be handed down by the Court by the end of June.

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