A Huge Win for Employers: Q&A With Horton's Lead Lawyer About Today's D.R. Horton v. NLRB Decision

by JD Supra Perspectives

...the Court went out of its way to remind the NLRB that, while it has the authority to interpret the NLRA, it cannot trample on other statutes when doing so.

Today, the 5th U.S. Circuit Court of Appeals issued their much anticipated decision in D.R. Horton v. NLRB, overturning an earlier National Labor Relations Board ruling on worker arbitration agreements that was at the heart of this closely watched case.

To help employers make sense of today's ruling, here's a quick Law Matters Q&A with Ron Chapman, Jr. of Ogletree Deakins, lead lawyer representing D.R. Horton:

1.  What did the 5th Circuit decide today in D.R. Horton v. NLRB?

The Fifth Circuit ruled employers can have arbitration agreements that contain class action waivers without violating the NLRA. Previously, the NLRB had ruled that a class action waiver violates employees’ right under the NLRA to engage in concerted activity. The Fifth Circuit disagreed, finding that nothing in the NLRA trumps the congressional mandate of the Federal Arbitration Act requiring arbitration agreements to be enforced according to their terms.

2.  What stood out the most in the Fifth Circuit’s opinion?

I thought the Court went out of its way to remind the NLRB that, while it has the authority to interpret the NLRA, it cannot trample on other statutes when doing so. That’s an important reminder that has ramifications on other issues, not just class action waivers.

This is an enormous victory for employers because a class action waiver can defeat a class or collective action at the outset...

3.  Why is this important for employers?

This is an enormous victory for employers because a class action waiver can defeat a class or collective action at the outset. The cost of defending even one class or collective action can be tens of millions of dollars, and aggressive plaintiffs’ lawyers frequently use the risk of such costs to extort large settlements. Class action waivers can even the playing field and allow the parties to focus on the merits of the actual dispute rather than the procedural morass that accompanies class and collective actions.

4.  Will the NLRB appeal the Fifth Circuit’s decision to the United States Supreme Court?

Possibly. The NLRB has the right to seek Supreme Court review, just as it has the right to accept the determination of the Fifth Circuit and change its interpretation of the law to conform with that of the Fifth Circuit and almost every other court that has considered the issue.

5.  What should employers do now in the wake of the decision?

For those employers that do not have an arbitration agreement, they should consider or reconsider adding one.  While there are pros and cons to having an arbitration agreement, the Fifth Circuit’s decision changes that analysis. For those employers that do have an arbitration agreement, they need to update it to make sure it is in compliance with the latest nuances in this evolving area of the law. The precise wording is very important.


[JD Supra's new Law Matters series asks experts for their quick take on legal developments of the day, and specifically how such matters affect people in their personal and professionals lives. Stay tuned for other posts in the series.]

Read or download the court's decision in full here.

Written by:

JD Supra Perspectives

JD Supra Perspectives on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.