2017 Labor & Employment Cases – U.S. Supreme Court Edition – UPDATE

n January 13, 2016, the Supreme Court of the United States granted cert to multiple petitions seeking an answer to a seemingly simple question: whether class-action waivers in employment arbitration agreements, otherwise subject to the Federal Arbitration Act, violate the National Labor Relations Act. You can find our prior coverage of these petitions here.

The NLRA was enacted in 1935 to protect the rights of employees, to encourage them to collectively bargain, and to put a halt to certain private sector labor and management practices. The Act applies to most private-sector employers, but not to federal, state, and local governments.

The Supreme Court has not been shy in recent years in expressing its broad deference to the Federal Arbitration Act. See, e.g., DirecTV, Inc. v. Imburgia, 577 U.S. ___ (2015) (holding that class-action waivers in consumer arbitration agreements were enforceable); AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (2011) (holding that class action waivers are enforceable under the FAA). The bans presently before the Court, however, unlike the bans in consumer arbitration agreements, arguably violate employees’ rights to concerted action and activities permissible under the NLRA.

Whether the DirecTV and Concepcion decisions portend the Court’s decision in these new cases is uncertain, but we’ll be following the Court closely and we’ll provide updates to you as they become available.

If you have any questions about how these decisions can or will affect you, your business, or your workforce, give us a call today at (859) 263-7884.


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