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Filing Opt-out Wage and Hour Class Action Induces Concerted Activity: NLRB
Practical Law Legal Update 4-618-4005 (Approx. 6 pages)
Filing Opt-out Wage and Hour Class Action Induces Concerted Activity: NLRB
by Practical Law Labor & Employment
| Published on 27 Aug 2015 • USA (National/Federal) |
In Leslie's Poolmart, Inc., the National Labor Relations Board (NLRB) formally held that an employee who files an opt-out class action engages in concerted activity protected by the National Labor Relations Act (NLRA).
On August 25, 2015, in Leslie's Poolmart, Inc., the panel (Board) heading the NLRB's judicial functions formally held that an employee engages in concerted activity protected by the NLRA by filing an opt-out class action. This decision:
- Extends the Board's holding in 200 E. 81st Rest. Corporation (Beyoglu) that filing an opt-in class or collective action is concerted protected activity (362 N.L.R.B. slip op. 152 (July 29, 2015); see Legal Update, FLSA Collective Action by Single Employee Ostensibly on Behalf of Other Employees Is Protected Concerted Activity: NLRB).
- Formally ratifies dicta from Murphy Oil USA, Inc. that filing an opt-out class action can be concerted activity even though litigations using that procedural mechanism can run their entire course without spurring group action (361 N.L.R.B. slip op. 72 (Oct. 28, 2014); see Legal Update, NLRB Redoubles Stance that Mandatory Arbitration Clauses Waiving Employees' Rights to Pursue Class or Collective Actions Violate the NLRA).
Leslie's Poolmart is the latest of the D.R. Horton, Inc. and Murphy Oil progeny to hold an employer unlawfully sought to enforce an arbitration agreement with a former employee to preclude a class action (357 N.L.R.B. slip op. 184 (Jan. 2, 2012); see Legal Update, Mandatory Arbitration Agreement Prohibiting Class and Collective Actions Violates the NLRA: NLRB). Like the arbitration agreement in Countrywide Financial Corporation, this agreement was silent on the arbitrability of class and collective claims and therefore was not restrictive of Section 7 rights on its face (362 N.L.R.B. slip op. 165 (Aug. 14, 2015); see Legal Update, Employer Committed ULP By Enforcing Facially Valid Arbitration Agreement to Prevent Class and Collective Actions: NLRB).
UPDATE
In Epic Systems Corp. v. Lewis, the US Supreme Court held that arbitration agreements with class and collective action waivers are not prohibited under Section 7 of the NLRA and must be enforced as written under the Federal Arbitration Act (FAA). The decision invalidates the NLRB's analysis in D.R. Horton and Murphy Oil on which this decision relies and therefore abrogates much of the analysis in this case (( (U.S. May 21, 2018); see Legal Update, SCOTUS: Arbitration Agreements with Class Action Waivers Must Be Enforced as Written, and NLRA Does Not Command Otherwise and Article, Expert Q&A on Class Action Waivers in the Employment Context.)