On May 26, the U.S. Court of Appeals for the Seventh Circuit in Lewis v. Epic Systems1 issued the first appellate decision to agree with the National Labor Relations Board (NLRB) that §7 of the National Labor Relations Act (NLRA) bars employers from requiring as a condition of employment that employees agree to an arbitration provision precluding class or collective actions. Epic Systems sets up a conflict with other courts of appeals, which have held that the NLRB’s rule clashes with the Federal Arbitration Act (FAA).
The NLRB’s position was first announced in D.R. Horton.2 In that case, the agency reasoned that §7 protects the rights of all employees to engage in “concerted activity,” which includes resort to a class forum for addressing work complaints, and prohibits an employer’s insistence on an arbitration agreement requiring employees to waive their rights to file class or collective actions.
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