Perhaps a better title for this post would be "Elections Matter." Yet I do like "wavers on waivers."
"Am I the only one wondering whether the incoming administration will argue in favor of the NLRB's position in the NLRB v. Murphy Oil case?" That's what I wrote back in January [here].
Three cases pending in the US Supreme Court raise the following issue:
Whether arbitration agreements with individual employees that bar them from pursuing work-related claims on a collective or class basis in any forum are prohibited as an unfair labor practice because they limit the employees' right under the National Labor Relations Act to engage in "concerted activities" in pursuit of their "mutual aid or protection," and are therefore unenforceable under the savings clause of the Federal Arbitration Act.
Even though these cases turn on the National Labor Relations Act, they will have an impact on the non-union private sector workforce (over 90% are non-union).
Opening briefs had been due on April 28, but the Acting Solicitor General requested a delay. The Court granted a delay until June 9.
Why the delay in briefing? The Acting Solicitor General's request says:
"[T]he current briefing schedule is no longer adequate for the government [because] . . . [t]he Acting Solicitor General is engaged in a process of reviewing the position of the United States in these cases" and that he "must . . . consult with new leadership within the government."
So here we go, folks. The NLRB has taken the position (beginning with D.R. Horton (NLRB 2012)) that class action waiver agreements are illegal because they deny employees the statutory right to engage in concerted activities for mutual aid and protection. But the Department of Justice takes over a case once it gets to the US Supreme Court. It was a Democrat-dominated NLRB that decided D.R. Horton in 2012, and the Republicans are running the DOJ in 2017. Elections matter, my friends.
Courts have divided on the central issue, and the following cases are all consolidated and pending at the US Supreme Court:
- Epic Systems Corp v. Lewis [Cert petition] [7th Circuit opinion] [Supreme Court briefs] (class action waiver in arbitration agreement violates NLRA and is unenforceable under the FAA).
- Ernst & Young v. Morris [Cert petition] [9th Circuit opinion] [Supreme Court briefs] ("an employer violates the National Labor Relations Act by requiring employees to sign an agreement precluding them from bringing, in any forum, a concerted legal claim regarding wages, hours, and terms of conditions of employment.")
- NLRB v. Murphy Oil [Cert petition] [5th Circuit opinion] [Supreme Court briefs] (refusing to enforce the NLRB's D.R. Horton rule)
Personally, I expect the government to do an about-face and disown the basic D.R. Horton rule.
Oral arguments should be scheduled for the Fall of 2017, with a decision coming in 2018.
[For recent decisions and pending employment law cases, see Supreme Court Watch.]
Web site for Ross Runkel, Arbitrator & Mediator: https://www.rossrunkel.com/