News & Analysis as of

Fenwick Employment Brief - November 2014

Jury to Decide Adequacy of FMLA Recertification Notice Delivered by Email - A recent case allowing an employee to take claims under the federal Family and Medical Leave Act (“FMLA”) to trial underscores the importance...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

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

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

Uncertainty Remains Regarding the NLRB's Position on Class and Collective Action Waivers

The law concerning class action waivers continues to develop at a rapid pace. While most courts are now enforcing class action waivers in arbitration agreements, there remains at least one prominent area of uncertainty for...more

Class Claim Arbitration Waivers Win Big in Ninth Circuit

In two cases from the Ninth Circuit Court of Appeals on June 23, 2014, arbitration agreements won big on the class-claims waiver issue. This is good news for the employers operating in the Ninth Circuit, and California in...more

California Supreme Court Rules on Class Waivers

The court holds that class action waivers in arbitration agreements are enforceable but PAGA waivers are not. On June 23, the California Supreme Court issued its much-anticipated decision in Iskanian v. CLS...more

Fifth Circuit Will Not Review Decision Rejecting NLRB Position on Class Action Arbitration Waivers

As previously reported in EmployNews, federal courts across the U.S. continue to hear cases challenging the inclusion of class and collective action waivers in mandatory arbitration agreements between employers and employees....more

Employment Law

California Employers Face Rise In PAGA Suits - Why it matters: California employers are facing a proliferation of suits filed under the State’s Private Attorney General Act (PAGA): new data reveals that the number of...more

Fifth Circuit Delivers Crippling Blow to Controversial NLRB Class Action Waiver Theory

Arbitration is generally supposed to be faster, cheaper, and more predictable than litigation. Homebuilder D.R. Horton, like many other employers, certainly believed this when, in 2006, it began requiring employees to sign...more

D.R. Horton on Steroids: NLRB Invalidates Arbitration Agreement Without Class Waiver

As reported previously here, the National Labor Relations Board (“NLRB” or the “Board”) in D.R. Horton, Inc., 357 NLRB No. 184 (2012), held that requiring employees to enter into an arbitration agreement containing a...more

“Loath to create a circuit split,” the Fifth Circuit Overturns NLRB’s D.R. Horton Ruling that Class Arbitration Waivers in...

The Fifth Circuit Court of Appeals recently rendered its long-awaited decision in D.R. Horton, Inc. v. NLRB, No. 12-60031 (5th Cir. Dec. 3, 2013), revised December 4, 2013, which reversed the National Labor Relations Board...more

Fenwick Employment Brief - December 2013

Finding the National Labor Relations Board failed to give appropriate weight to the Federal Arbitration Act, the federal Fifth Circuit Court of Appeals overturned a Board decision invalidating an arbitration agreement that...more

Horton Hears a Reversal

On Tuesday, December 3rd, the Fifth Circuit Court of Appeals upheld the enforcement of mandatory arbitration provisions that include a class waiver. In D.R. Horton, Inc. v. NLRB, 2013 U.S. App. LEXIS 24073 24073 (5th Cir....more

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...more

Fifth Circuit Permits Class Action Waivers In Arbitration Agreements

The Fifth Circuit Court of Appeals recently handed a victory to employers in D.R. Horton, Inc. v. National Labor Relations Board, 12-60031, 2013 W.L. 6231617 (5th Cir. Dec. 3, 2013), reversing an Order of the National Labor...more

As the Class Waiver Turns — The Latest in the D.R. Horton Saga

Tuesday, December 3, 2013, marked the latest turn in the D.R. Horton saga. On Tuesday, the Fifth Circuit Court of Appeals rejected the National Labor Relations Board’s (the Board’s) January 3, 2012 ruling in the D.R. Horton...more

Foiled Again: DR Horton Overturned (But Be Careful How You Phrase Your Arbitration Agreement)

Earlier this week, a three judge panel of the Fifth Circuit Court of Appeals issued its long-awaited decision in DR Horton Inc. v. NLRB. As expected by most labor lawyers, including us, the Fifth Circuit (with one judge...more

Tackling Class Actions Before They Start

Courts continue to make it easier for employers to adopt arbitration agreements and class action waivers. In our most recent edition of SuperVision Today, we mentioned recent rulings from National Labor Relations Board...more

Class Action Waiver Is Enforceable Despite NLRA Concerted Activity Provisions

On December 3, 2013, in D.R. Horton, Inc. v. National Labor Relations Board, the U.S. Court of Appeals for the Fifth Circuit found that class action waiver provisions contained in mandatory, pre-dispute arbitration agreements...more

Fifth Circuit Upholds The Validity Of Class-Action Waivers In Arbitration Agreements

Earlier this week, on December 3, 2013, the Fifth Circuit Court of Appeals held that arbitration agreements lawfully can contain class-action waivers. In its ruling in D.R. Horton, Inc. v. National Labor Relations Board, the...more

Fifth Circuit Upholds Arbitration Agreement Prohibiting Employee Collective or Class Action Claims

On Tuesday, the U.S. Court of Appeals for the Fifth Circuit joined the Second, Eighth and Ninth Circuits in upholding a class action waiver in an employment arbitration agreement. This is an important victory for employers in...more

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