Litigation: The NLRB’s view on employee rights to class actions

A new opinion on class arbitration waivers

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.

Such conduct is not peripheral but central to the Act’s purposes.” The NLRA “equally protects the concerted pursuit of workplace grievances in court or arbitration.” Accordingly, the waiver was deemed to violate Section 8 of the NLRA, which prohibits employers from interfering with, restraining or coercing employees in the exercise of the rights guaranteed by Section 7.

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:


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Anthony Lathrop

Anthony T. Lathrop is a member of Moore & Van Allen PLLC, in Charlotte, N.C., and can be reached at 704-331-3596 or

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