Horton appealed

The NLRB's decision in D. R. Horton has been appealed to the Fifth Circuit. This is the case where the NLRB found an arbitration policy waiving class or collective relief on employment law claims interferes with employees rights under the NLRA. Our prior post is here.

NLRB activism

Remember AT&T Mobility v. Concepcion?  Many thought the decision would lead many employers to adopt arbitration requirements that would prevent employees from pursuing class or collective employment claims. Last June we posted on the NLRB's request for briefs concerning compelled waiver of class arbitrations. The NLRB has ruled and its good news for employees. Employers who try to compel employees to waive all rights to a judicial forum for employment disputes violate the NLRA if the arbitration agreement also prohibits group, collective or class arbitrations.  The NLRB finds collective pursuit of such claims to be protected concerted activity. While employers may impose a requirement that individual claims must be arbitrated as individual claims, they may not also prevent employees from pursuing group claims in a judicial forum. The decision, D.R. Horton, Inc. may be downloaded here.

Activist Board considering class action issue

What an activist the NLRB has become. It seems ready to consider finding a ban on class action claims enforced by a mandatory arbitration agreement violates the NLRA. It has solicited briefs on the following:

Did the Respondent violate Section 8(a)(1) of the Act by maintaining and enforcing its Mutual Arbitration Agreement, under which employees are required, as a condition of employment, to agree to submit all employment disputes to individual arbitration, waiving all rights to a judicial forum, where the arbitration agreement further provides that arbitrators will have no authority to consolidate claims or to fashion a proceeding as a class or collective action?

Pending case D. R. HORTON, INC. 12-CA-25764. Searchable here.