From JDSupra, Carrie Francis, Sharon Ng, and Lonnie Williams, Jr. discuss a recent case that said that arbitration agreements that prohibits employees from joining in a class action or other collective action is a violation of their rights under the National Labor Relations Act. They write:
In a recent opinion, Morris v. Ernst & Young, the Ninth Circuit Court of Appeals followed the Seventh Circuit and held that employers violate the National Labor Relations Act (NLRA) when they require employees to sign an agreement that precludes employees from bringing a concerted legal claim regarding wages, hours and terms of conditions of employment.
This case marks another chapter in the ongoing D.R. Horton saga, which began in 2012 when the National Labor Relations Board (NLRB) decided in the D.R. Horton case that requiring employees to waive class and collective actions in an arbitration agreement violated the NLRA. Although the Fifth Circuit subsequently rejected the NLRB’s decision, and the Second and Eighth Circuits have followed suit, the NLRB continues to apply D.R. Horton against employers nationwide and will likely continue to do so absent Supreme Court review, due to its policy of “nonacquiescence” to unfavorable intermediate appellate opinions.