Legal Alert - Ninth Circuit Invalidates Class Action Waivers Contained in Employment Arbitration Policies


by William R. Hayden

Beginning in approximately 2012, the National Labor Relations Board (“NLRB”) adopted the position that any class action waiver contained in an employment arbitration policy or agreement violates the right of employees to engage in “concerted activity” under § 7 and § 8 of the National Labor Relations Act (“NLRA”) and is therefore unenforceable. Employers may have NLRB Orders reviewed by the U.S. Court of Appeals. The first three U.S. Courts of Appeals to consider the NLRB’s position rejected it, holding that such class action waivers are enforceable. See NLRB v. D.R. Horton, 737 F.3d 344 (5th Cir. 2013); Sutherland v. Ernst & Young LLP, 726 F.3d 290 (2d Cir. 2013); NLRB v. Murphy Oil USA, Inc., 808 F.3d 1013 (5th Cir. 2015); and Cellular Sales of Missouri, LLC v. NLRB, 2016 WL 3093363 (8th Cir. 2016).

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