News & Analysis as of

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

Compelling Individual Arbitration Violates National Labor Relations Act? It Does According to ALJ

Joining the ever growing list of opinions on the arbitrability of class claims, an NLRB Administrative Law Judge recently ruled that an arbitration agreement that did not expressly bar workers from bringing class or...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

D.R. Horton Still Alive: NLRB Judge Says Employer’s Intent to Compel Employees to Waive Class Claims Renders Arbitration Clause...

Although the Circuit Courts of Appeals that have addressed the issue currently stand united in the view that class arbitration waivers in individual employment contracts do not violate the National Labor Relations Act...more

NLRB Standing (read “Expanding”) Ground on D.R. Horton

In the controversial 2012 decision D.R. Horton, Inc., the NLRB held that mandatory arbitration agreements requiring all employment disputes to be resolved through individual (as opposed to class) arbitration violate NLRA §...more

D.R. Horton and the Arbitration Hotchpotch: Emerging “Rules” and the Future of Compelled Arbitration in California

Last December, the Fifth Circuit issued its long-awaited decision in D.R. Horton, Inc. v. NLRB, holding that employers may require employees to sign arbitration agreements categorically waiving the right to pursue employment...more

Fifth Circuit Overrules NLRB On D.R. Horton Mandatory Arbitration Case

As we previously reported, in D.R. Horton, the NLRB held that a mandatory arbitration agreement that waives employees’ rights to participate in class or collective actions is unlawful under the National Labor Relations Act...more

Fifth Circuit Reverses NLRB Position on Use of Class and Collective Action Waivers in Mandatory Arbitration Agreements

On Tuesday, the Fifth Circuit Court of Appeals overturned a decision of the National Labor Relations Board that declared class and collective action waivers in mandatory employment arbitration agreements to violate federal...more

Fenwick Employment Brief - May 2013

The NLRB's controversial requirement that employers post notices informing employees of their rights under the National Labor Relations Act (as reported in our January and May 2012 FEBs) has been held unconstitutional by the...more

NLRB Decisions To Fall Like Dominos?

As you may have heard, the District of Columbia Circuit Court of Appeals recently sent shockwaves through the labor relations world by holding that President Obama's "recess" appointments to the National Labor Relations Board...more

Non-Union Employer’s Mandatory Arbitration Provision Violates The NLRA

The National Labor Relations Board (NLRB) continues with its trend of finding fault with employer policies, this time holding that a non-union company’s mandatory grievance and arbitration policy violated the National Labor...more

Dynamic Year Expected in Labor and Employment Law

President Obama's re-election, a newly active NLRB, and important decisions pending before the Supreme Court promise to make 2013 an interesting year in labor and employment law – domestically and internationally. Here is a...more

Eighth Cicuit: FLSA Does Not Preclude Enforcement of Class Action Waiver

In a significant victory for employers, the Eighth Circuit, in Owen v. Bristol Care Inc., No. 12-1719, overturned a Missouri district court ruling that class action waivers were unenforceable in FLSA cases....more

Eighth Circuit Upholds Employment Agreement Waiving Collective Action Rights

The U.S. Court of Appeals for the Eighth Circuit has joined the clear majority of federal district courts in concluding that employment arbitration agreements may bar class and collective actions, in spite of the National...more

NLRB Looks Back on FY 2012

On October 16, 2012, the National Labor Relations Board (NLRB or Board) issued a report on its decisions and activities during fiscal year (FY) 2012, which ended on September 20, 2012. In sum, the Board reported that it...more

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