Over the last several years, federal courts have relied on the Federal Arbitration Act (“FAA”) in enforcing predispute mandatory arbitration agreements between employers and employees, which require an individual employee to waive his or her rights to assert employment related claims in court, in favor of arbitration. Such agreements, however, do not by themselves mandate that class or collective actions be submitted in court or arbitration. Consequently, employers have included class and collective action waiver provisions in such agreements; these waivers serve to prevent employees from bringing class and collective claims in any forum.
The National Labor Relations Board (“NLRB”) has opposed class and collection action waivers, and has held that requiring employees to agree to such waivers as a condition of employment violates the National Labor Relations Act (“NLRA”). Not surprisingly, there has been a split among the U.S. Circuit Courts of Appeal, with some disagreeing with the NLRB and others agreeing that class and collective action waivers violate the NLRA.
U.S. Circuit Courts Finding No Violation of the NLRA