Legal Alert - Arbitration of Employment Class or Collective Claims
by Gerard Morales
In D.R. Horton, Inc., 357 NLRB No. 184 (2012), the National Labor Relations Board (NLRB or the Board) held that a mandatory arbitration policy violated the National Labor Relations Act (NLRA or the Act) because it required employees to refrain from bringing collective or class claims in any forum, whether a court or arbitral forum. The Board based its holding on the basic proposition that any work policies or rules that tend to chill employees’ rights to engage in concerted action are unlawful. Lafayette Park Hotel, 326 NLRB 824 (1998). The mere maintenance of any such rule or policy violates the NLRA, without regard to whether the employer ever applied it for that purpose. Guardsmark v. NLRB, 475 F.3d 369 (D.C. Cir. 2007).