For more on class arbitration waivers, read Anthony Lathrop’s previous column
The National Labor Relations Board (NLRB) recently joined the ranks in ruling on whether class arbitration waivers are enforceable in the wake of the Supreme Court’s ruling in AT&T Mobility LLC v. Concepcion. According to the NLRB, employees cannot be required to relinquish their right to class action resolution of employment claims via a waiver in an individual employment contract. On Jan. 3, the NLRB issued its opinion in D. R. Horton, Inc. and Michael Cuda in which it focused on the rights of employees under the National Labor Relations Act (NLRA) to engage in concerted activities and the corresponding prohibition against employers interfering with those rights.
In holding the waiver unenforceable, the NLRB held that Concepcion was not controlling, and that the purposes of the FAA were not frustrated. The NLRB distinguished Concepcion on the bases that it did not address the NLRA or an employment agreement, and it involved “a conflict between the FAA and state law, which is governed by the Supremacy Clause, whereas the present case involves the argument that two federal statutes conflict.” Further, the NLRB relied upon Supreme Court precedent regarding arbitration and the vindication of statutory rights to find that the FAA did not conflict with its ruling: