Employers commonly require new employees to execute arbitration agreements as a condition of employment. In many instances, such arbitration agreements contain class/collective action waivers, which provide that any employment-related disputes be adjudicated through arbitration and the employee waives his or her right to file or participate in any class/collective action in court.
Arbitration agreements with these waiver provisions have come under steady attack since 2012 by the National Labor Relations Board. That was the year of the board’s much-debated D.R. Horton decision, which found class/collective action waivers violate employee concerted activity rights under the National Labor Relations Act. Since handing down that decision, the board has consistently found employers act unlawfully by maintaining and/or enforcing such waivers against employees. The board’s unswerving adherence to its position is despite near-unanimous rejection of it by the federal courts that have reviewed the issue, including reversal of the D.R. Horton case itself by a federal appeals court.
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