Fifth Circuit Overturns NLRB Decision on Class and Collective Action Waivers


On December 3, the Fifth Circuit set aside the National Labor Relations Board’s (“NLRB” or “Board”) ruling that the National Labor Relations Act (“NLRA”) prohibits employers from including class or collective action waivers in mandatory arbitration agreements. The NLRB had previously held that a waiver used in homebuilder D.R. Horton, Inc.’s arbitration agreements ran afoul of the NLRA because a reasonable employee could view such a waiver as a limitation on engaging in protected concerted activity. The Board’s decision originated from a claim brought against D.R. Horton by an employee who had attempted to initiate a class action under the Fair Labor Standards Act (“FLSA”). The employee then turned to the NLRB, arguing that D.R. Horton’s agreement violated Section 7 of the NLRA by conditioning employment upon a waiver of the right to pursue claims in a collective manner. In January 2012, the NLRB agreed.

In overturning the NLRB’s decision, the Fifth Circuit held that the Board failed to apply appropriate weight to the Federal Arbitration Act (“FAA”), which allows lawful arbitration agreements to be enforced as written. Specifically, the Fifth Circuit held that class action procedures are not a substantive right, and, further, the “NLRA should not be understood to contain a congressional command overriding application of the FAA.” The court did agree with the NLRB, however, that arbitration agreements must permit filing of administrative claims with the Board.

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