The NLRB and Class Action Waivers: D.R. Horton v. NLRB

Labor & Employment Law Practice Group Teleforum

This case involves an epic clash between two federal statutes enacted many decades ago. On one side is the Federal Arbitration Act, which requires that arbitration agreements be enforced according to their terms. On the other side is the National Labor Relations Act, which protects the right of employees to engage in protected concerted activity. The clash is over mandatory arbitration agreements that waive the right of employees to file class or collective actions under federal or state employment laws. The U.S. Supreme Court has repeatedly upheld these waivers in arbitration agreements under the Federal Arbitration Act. However, the National Labor Relations Board held in D.R. Horton that requiring such a waiver in a mandatory arbitration agreement is an unfair labor practice because it restricts the right of employees to engage in concerted activity affecting their working conditions. In so holding, the NLRB rejected the contrary opinion of its former General Counsel. The employer in that case has appealed to the Fifth Circuit, which is scheduled to hold oral argument on February 5, 2013. Meanwhile, numerous other federal and state courts around the country have rejected the D.R. Horton reasoning in litigation involving the enforceability of class waivers in arbitration agreements.

Featuring:

• Mr. Ron Chapman, Jr., Shareholder, Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
• Hon. Ronald Meisburg, Partner, Proskauer Rose LLP; former Member and General Counsel, National Labor Relations Board
• Moderator: Mr. William J. Emanuel, Shareholder, Littler Mendelson

This case involves an epic clash between two federal statutes enacted many decades ago.  On one side is the Federal Arbitration Act, which requires that arbitration agreements be enforced according to their terms.  On the other side is the National Labor Relations Act, which protects the right of employees to engage in protected concerted activity.  The clash is over mandatory arbitration agreements that waive the right of employees to file class or collective actions under federal or state employment laws.  The U.S. Supreme Court has repeatedly upheld these waivers in arbitration agreements under the Federal Arbitration Act.  However, the National Labor Relations Board held in D.R. Horton that requiring such a waiver in a mandatory arbitration agreement is an unfair labor practice because it restricts the right of employees to engage in concerted activity affecting their working conditions.  In so holding, the NLRB rejected the contrary opinion of its former General Counsel.  The employer in that case has appealed to the Fifth Circuit, which is scheduled to hold oral argument on February 5, 2013.  Meanwhile, numerous other federal and state courts around the country have rejected the D.R. Horton reasoning in litigation involving the enforceability of class waivers in arbitration agreements.

Featuring:

• Mr. Ron Chapman, Jr., Shareholder, Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
• Hon. Ronald Meisburg, Partner, Proskauer Rose LLP; former Member and General Counsel, National Labor Relations Board
• Moderator: Mr. William J. Emanuel, Shareholder, Littler Mendelson 

Call begins at 2:00 p.m. Eastern Time.

Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up here. As a member, you should receive email announcements of upcoming Teleforum calls which contain the conference call phone number. If you are not receiving those email announcements, please contact us at 202-822-8138.