However, despite arbitration’s growing acceptance from the courts, these agreements have been vilified by the plaintiffs’ bar, as well as the National Labor Relations Board (NLRB), which enforces federal labor law. The NLRB, despite several setbacks in the courts, has taken the position that arbitration agreements with class action waivers in the employment setting violate federal labor law and are, therefore, unenforceable.

With the Supreme Court on one side of the issue and the NLRB firmly on the other, it is important for employers to fully understand the pros and cons of arbitration agreements with class action waivers, especially in an era of increased employment-related litigation.

THE BASICS OF ARBITRATION AND CLASS ACTION WAIVERS

Arbitration provides an avenue for settling disagreements without involving the traditional court system. It is a form of “alternative dispute resolution,” which can also include mediation, and is designed to be less expensive, quicker, and less formal than traditional litigation. In addition, although the parties do have access to discovery during the arbitration proceeding, discovery is typically limited and streamlined, to promote efficiency in the proceeding.

Arbitration bears many similarities to a traditional trial. Both sides make opening statements and present evidence. An impartial arbitrator listens to claims, facts, and testimony from both sides, then issues a decision. In most arbitrations, there are very limited opportunities to appeal an adverse ruling. Consequently, most arbitration decisions are final and binding on the parties.

Arbitration agreements with class action waivers include an agreement between the employee and the employer that any disputes will be resolved in individual arbitration. This can be extremely helpful in preventing costly class action wage and hour or discrimination cases that can drag on for years and result in significant exposure and attorneys’ fees.

THE EVOLVING CASE LAW AND REGULATORY DECISIONS

In recent years, courts have upheld the right of employers to require employees to sign agreements that mandate arbitration between the parties, as long as the agreements are fair to employees and are not one-sided in favor of the employer.

The Federal Arbitration Act (FAA) has long established a liberal federal policy favoring the enforcement of arbitration agreements according to their terms. However, some states have limited enforcement of arbitration agreements, citing fairness concerns. In 2011 the U.S. Supreme Court issued its seminal decision in AT&T Mobility v. Concepcion, where the Court confirmed the over-arching enforcement policy of the FAA. The Supreme Court overruled a California statute that sought to preclude class action waivers in certain circumstances. This decision was widely praised by the business community because it brought much needed clarity to the enforceability of arbitration agreements. In addition, recent court decisions have built upon Concepcion, thereby increasing the enforceability of these agreements.

There has been, however, some push back against arbitration agreements in the employment setting. In 2012, in a case against D.R. Horton Inc., the NLRB ruled that class action waivers in arbitration agreements violate Section 7 of the National Labor Relations Act, which provides workers the right to engage in “concerted activity” for mutual aid and protection. The NLRB argues that class action waivers prevent employees from acting in concert to address common concerns, and that federal labor law preempts the FAA.

Fortunately for employers, the NLRB’s position has not found support in the majority of courts that have examined the question. In fact, the NLRB’s D.R. Horton decision was overturned by the Fifth Circuit Court of Appeals, which held that class and collective action waivers in employment arbitration agreements do not violate federal labor law and are enforceable, as long as employees maintain the right to bring actions as individuals.

The NLRB, despite being overturned by the Fifth Circuit, has continued to adhere to its position that such arbitration agreements are unenforceable. In 2014, in a case against Murphy Oil USA Inc., the Board reaffirmed its D.R. Horton ruling, and held that a “Binding Arbitration Agreement and Waiver of Jury Trial” was unenforceable under federal labor law. In so holding, the NLRB acknowledged that its ruling was controversial. “We have no illusions that our decision today will be the last word on the subject, but we believe that D.R. Horton was correctly decided, and we adhere to it,” the opinion noted.

Notwithstanding the NLRB’s position, the federal courts and almost all state courts are in agreement that arbitration agreements with class action waivers are valid and enforceable.

NEXT STEPS

Despite the uncertainty created by the NLRB, an arbitration agreement, especially one containing a class action waiver, can provide real benefits to employees and employers alike. Thorough and consistent agreements can go a long way towards heading off potential confusion — and possible lawsuits or regulatory actions. There are, however, several considerations when updating or implementing class action waivers:

• Consider whether arbitration agreements are the right fit.

Although arbitration agreements with class action waivers have many benefits, such agreements many not be right for all employers. Consider your company’s litigation exposure and the pros and cons of implementing such agreements. Arbitration agreements typically provide for cheaper and faster resolution of disputes, class action waivers, greater confidentiality, increased informality, and a more predictable process. However, downsides include employee resentment, confusion over rights, reduced discovery during a dispute, and the inability to appeal. Generally speaking, the ability to preclude class action litigation provides a significant benefit for all but the smallest employers.

• Make sure agreements are fair and legal.

In order to stay out of legal trouble, arbitration agreements need to apply equally to both sides. That means that employers need to agree to submit to arbitration over disputes, if they expect employees to do so. The ground rules for choosing an arbitrator also need to apply to employers and employees — employers cannot make such decisions without employee input.

Any agreement should to allow for exceptions, since some types of disputes are typically exempt from alternative dispute resolution. For example, workers’ compensation claims must go before the appropriate state agency, and employees have rights to bring discrimination claims directly to the U.S. Equal Employment Opportunity Commission. Some types of whistle-blower lawsuits also may not be subject to mandatory arbitration.

Finally, the enforceability of arbitration agreements varies greatly state-to-state. It is extremely important to work with experts in human resources and attorneys to make sure any agreement you adopt is legal and enforceable.

• Educate employees.

Once an arbitration agreement has been drafted or updated, employers should ensure employees understand what the agreement means and what their rights are once they sign it. While some employees may balk at the idea of signing an arbitration agreement, a well-written agreement should also work in their favor. Take the time to explain the advantages, so employees understand how signing the agreement will benefit them as well.

• Stay current and flexible.

Since courts and regulatory agencies regularly look at class action waivers, employers need to stay on top of any new developments. This is particularly true now since the courts and the NLRB are at odds over class-action waivers. Attorneys and trade groups can be excellent sources of information for these types of updates. Companies should also regularly review the waivers, along with other aspects of their employment agreements, to make sure they are still relevant.

Despite the NLRB’s rulings, class action waivers can be a smart approach to minimize the chances of multiple employees filing lawsuits. By planning carefully, staying on top of changes in regulations, and working with trusted advisors, employers can implement agreements that will proactively limit many of the headaches associated with employment-related litigation.

Publication date: 7/20/2015