NLRB General Counsel Issues Memo on the Supreme Court’s Pending Class Action Waiver Decision

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January 26, 2017

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The U.S. Supreme Court recently announced its intention to review the split of authority among circuit courts regarding class action waivers in arbitration agreements.  In the meantime, employers have wondered whether similar cases currently in progress with the National Labor Relations Board (“NLRB”) will be suspended pending the Supreme Court’s decision.  The NLRB’s general counsel issued a memo instructing regional directors on how to proceed with similar cases.

In cases where the employer is currently allegedly enforcing an arbitration agreement that includes a class action waiver, regional directors are instructed to (1) determine if the case has merit, and then (2) propose that the parties enter informal, conditional settlement agreements conditioned on the Supreme Court’s pending decision.  In other words, if the Supreme Court agrees with the NLRB and invalidates class action waivers in arbitration agreements, the settlement terms would be enforced, which may include that the employer will cease enforcing the agreement and apply any other required remedies.  If the Supreme Court disagrees with the NLRB, the charges against the employer would instead be dismissed on that particular issue.

The memo also addresses cases that contain unrelated allegations against an employer in addition to the class action waiver issue or arbitration agreements with class action waiver opt-out clauses, and how regional directors are instructed to handle such claims.  Any other requests to suspend or stay cases until the Supreme Court makes its decision will be considered by the NLRB general counsel on a case-by-case basis.

Action Items

  1. Review the general counsel’s memo the NLRB’s website.
  2. If your organization has a pending NLRB case involving class action waivers, consult with legal counsel to determine how to best move forward.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

© 2017 ManagEase, Incorporated.

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