The U.S. Supreme Court has agreed to consider whether employers can require their employees to waive the right to join with fellow workers to litigate workplace issues as a condition of employment. The enforceability of “concerted activity” waivers has divided federal circuit courts and will likely divide the justices of the Supreme Court along ideological lines.
Specifically, the court has agreed to review three cases from the U.S. Courts of Appeals for the Fifth, Seventh and Ninth circuits. The Fifth Circuit has held that the use of class action procedures by employees is not a substantive right under the National Labor Relations Act (NLRA) and that concerted activity waivers in employment agreements are enforceable under the Federal Arbitration Act. More recently, however, the Seventh and Ninth circuits have held that concerted activity waivers imposed by employers are directly at odds with the substantive provisions of the NLRA and, accordingly, unenforceable.
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