For years, the NLRB–which has been controlled by Democrat Board members–has taken the position that employers may not require employees to sign arbitration agreements containing class action waivers.
On Tuesday, President Trump appointed a management-side labor lawyer, William Emanuel, to the fifth and final seat on the Board, which creates a Republican majority for the first time in several years. Click here for the story.
The new Board is expected to reverse its D.R. Horton decision from 2012, in which it ruled that mandatory arbitration agreements containing class waivers would violate employees’ rights to collective action under Section 7 of the National Labor Relations Act.
Assuming the Board does as expected, the only thing standing in the way of your company’s class action waivers is rulings from the Seventh and Ninth Circuit Courts of Appeals, which we have written about previously.
While the Supreme Court will soon determine whether companies may force their employees to sign arbitration agreements containing class action waivers, employers have to like their odds now that the NLRB is controlled by Republicans.
That said, if your company operates in multiple jurisdictions, there are several states where class action waivers are currently unenforceable, including Illinois and California. Becasue of the risks inherent to arbitrating class and collective action claims, you may want to speak to an attorney about how to protect against a situation in which your class waiver gets struck but the rest of your arbitration agreement gets enforced.
If you would like to discuss the viability of your arbitration agreement and class action waivers, please feel free to email firstname.lastname@example.org or call (404) 849-0394.