Readers of a previous post will recall that in December 2013, the Fifth Circuit Court of Appeals rejected the view of the National Labor Relations Board (NLRB or the Board) in the significant D.R. Horton ruling. There, the Fifth Circuit held that an arbitration agreement that requires employees to arbitrate all employment disputes but restricts the arbitration proceedings to individual arbitrations only (i.e., not allowing class or collective arbitrations) does not violate Section 7 of the National Labor Relations Act.
The Board's administrative law judges (ALJ), despite this ruling, are continuing to follow the Board's reasoning in D.R. Horton and strike down such agreements. Most recently, just last week, in Leslie's Poolmart, Inc., 21-CA-102332 (Jan. 17, 2014), ALJ Lisa Thompson seemed to go even further. Judge Thompson reasoned that an arbitration agreement violated an employee's Section 7 rights, even though the agreement was silent as to requiring class or collective action waiver. The Judge reasoned it was still unlawful under D.R. Horton since the employer intended that effect, as evidenced by the employer's not only seeking to compel arbitration but also seeking to dismiss the class/collective claims.
The Board likely will continue this attack on such agreements until the Supreme Court rules on D.R. Horton, and employers would be wise to seek counsel in drafting, or attempting to enforce, such agreements.
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