Class Action Arbitration Waivers

News & Analysis as of

Who Decides the Issue of Class Arbitration?

Two districts of the California Court of Appeal recently issued significant decisions on arbitration agreements. In a published case, the Fourth Appellate District of the California Court of Appeal held that if the...more

NLRB Reaffirms Noel Canning Position on Use of Class Waivers in Arbitration Agreements

In its Noel Canning decision earlier this year, the U.S. Supreme Court vacated numerous decisions made by the National Labor Relations Board based on lack of a required quorum. The Court decided that President Obama’s recess...more

NLRB Reaffirms D.R. Horton Decision Invalidating Arbitral Class Action Waivers

In a controversial decision that rejects the precedent of numerous federal and state courts, the National Labor Relations Board (NLRB) has reaffirmed its earlier decision in D.R. Horton, Inc., 357 NLRB No. 184 (2012). In...more

Murphy Oil USA, Inc.: NLRB Holds on Class Action Arbitration Agreements - NLRB Reaffirms Its 2012 D.R. Horton Ruling Despite...

The National Labor Relations Board (Board) in Murphy Oil USA, Inc. and Sheila M. Hobson (Murphy Oil) refused to back away from its controversial 2012 ruling in D.R. Horton, Inc. and Michael Cuda (D.R. Horton) finding class...more

NLRB Reaffirms 2012 D. R. Horton Decision

The decision holds that arbitration agreements with class and collective action waivers violate the National Labor Relations Act. On October 28, the National Labor Relations Board (NLRB or the Board) held fast to its...more

No Class Action Waivers in Arbitration Agreements, Says NLRB

The National Labor Relations Board (NLRB) has decided to follow its own oft-criticized 2012 decision in D.R. Horton, holding that arbitration agreements barring class action lawsuits about working conditions, which are signed...more

California Court Implements Iskanian, Finds Agreement Waiving Representative Claims Under PAGA Unenforceable

Ybarra v. Apartment Investment and Management Company, No. B245901 (October 7, 2014): A California Court of Appeal recently affirmed a trial court decision finding that a class action waiver provision in an employee’s...more

NLRB Refuses To Yield On Anti-Arbitration Ruling Despite Near-Unanimous Rejection By Courts

Friday was Halloween, an occasion when our thoughts turn to jack o’lanterns, ghosts, and zombies. We are particularly fascinated by zombies—the dead returned to life. But we’re not the only ones. In a decision early last...more

Employment Law - Oct 2014 #3

DOL Grants Could Signal More Misclassification Actions - Why it matters: Employers have faced a tidal wave of litigation over the alleged misclassification of employees as independent contractors, with workers ranging...more

A Possible Game-Changer for 'Silent' Arbitration Clauses

Companies and other business entities use arbitration clauses to protect themselves from class action liability. While they often use class action waivers that state the parties agree not to pursue class claims in...more

The California Divide: Federal Courts Refuse to Follow State Supreme Court’s Iskanian Decision

One of the last barriers to full enforcement of arbitration agreements with class action waivers sustained another blow last week. A California federal district court disagreed with the California Supreme Court in holding...more

Recent Cases of Note - Class Action Quarterly: Volume 2, Issue 3

Fifth Circuit Addresses CAFA’s Local Controversy Exception - The Court of Appeals for the Fifth Circuit recently held that courts should only look to the complaint in effect at the time of removal when determining if...more

Arbitration Denied In Class Action Where Plaintiff’s Trust Was A Party To Arbitration Agreement, But Plaintiff Was Not

In a life settlement transaction, in which a life insurance policy is sold by its owner to another for more than its cash-surrender value but less than the net death benefit, the seller contended that the broker and purchaser...more

Your Collective Action Waiver May Not Survive in a Vacuum: 6th Circuit Says Arbitration Was Key to Enforcing Waiver of FLSA Claims

The Sixth Circuit Court of Appeals recently noted in Killion et al. v. KeHE Distrib., LLC, Nos. 13-3357/4340 (6th Cir. Jul. 30, 2014) that it was the first appellate court to tackle head on the question of whether a...more

California Court Determines Arbitrator Must Decide Whether Class Claims Are Subject to Arbitration Agreement

When an employee who has signed an arbitration agreement files a lawsuit alleging individual claims along with class action claims, and the trial court has ordered him to take his individual claims to arbitration, what...more

Third Circuit Denies Employees’ Petition For Rehearing In Class Arbitration Case

The Third Circuit Court of Appeals this week denied a petition for rehearing by the panel and the Court en banc in the Opalinski v Robert Half International, Inc. matter, where last month it held that the availability of...more

Is a FLSA Collective Action Waiver by Itself in a Severance Agreement Enforceable? Sixth Circuit Says “No.”

Employers have recently enjoyed some victories in the U.S. Supreme Court and in the California Supreme Court regarding the use of class/collective action waivers in employment arbitration agreements (e.g. Italian Colors and...more

It’s a Whole New Game in Opalinski v. Robert Half International, Inc. – Third Circuit Rules That Courts Decide the Availability of...

There are significant differences between individual (or “bilateral”) arbitration and classwide arbitration that can substantially affect the nature of arbitration as a dispute resolution mechanism. Individual arbitration can...more

Fenwick Employment Brief - August 2014

Partial-Day Leave Deductions Lawful for Exempt Employees - A California court of appeal recently confirmed that employers may require exempt employees to use accrued leave for partial-day absences, even if shorter than...more

The Third Circuit Joins The Sixth And Holds That The Availability Of Class Arbitration Is A Substantive Question Of Arbitrability...

“Because of the fundamental differences between classwide and individual arbitration, and the consequences of proceeding with one rather than the other, … the availability of classwide arbitration is a substantive ‘question...more

Another Employer Takes a “Collective” Hit

Fair Labor Standards Act (“FLSA”) “collective action" cases have become big business for plaintiffs’ lawyers. A recent decision by the United States Court of Appeals for the Sixth Circuit, Killion v. KeHe Distributors, not...more

Sixth Circuit Refuses to Uphold Collective Action Waiver Absent Arbitration

My working title for this blog was “collective action grab bag,” concerning the recent Sixth Circuit case in Killion v. KeHE Distributors, LLC, Case Nos. 12-3357/4340 (6th Cir. July 31, 2014). I went with the title that...more

Third Circuit Says Classwide Arbitration a Matter for Courts to Decide

The U.S. Court of Appeals for the Third Circuit ruled last week that courts, not arbitrators, should determine whether an agreement between two parties to arbitrate employment disputes allows for classwide arbitration....more

Employment Law Issues for Health Care Employers [Video]

In this webinar, moderated by Mark Kadzielski, Pepper partner and chair of the firm’s Health Care Services practice, Susan K. Lessack and Christopher J. Moran, both of Pepper’s Labor and Employment Practice Group, will...more

Executive Order Requires Certain Federal Contractors to Self-Report Labor Violations; Prohibits Mandatory Arbitration of Certain...

On July 31, 2014, President Obama signed the "Fair Pay and Safe Workplaces" Executive Order ("EO"), requiring federal contractors and subcontractors bidding on contracts over $500,000 to disclose any violations that they have...more

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