There is an ongoing battle between the federal courts and the National Labor Relations Board about the enforceability of class/collective action waivers in arbitration agreements. The NLRB has taken a position that such waivers are not enforceable and employees cannot be mandated to sign such waivers upon employment. This position conflicts with the court’s long-standing history of enforcing such agreements under the Federal Arbitration Act.
The Fifth Circuit recently ruled that such waivers are enforceable. DR Horton v. NLRB, Case No. 12-60031. This ruling is consistent with decisions in the Second, Eighth and Ninth Circuits.
Kelly Schoening is a Cincinnati attorney practicing at Dressman Benzinger LaVelle psc.
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