Law stated as of 31 Oct 2019 • USA (National/Federal)
In Amerisave Mortgage Corporation and Tarlton and Son, Inc., the National Labor Relations Board (NLRB) held that two separate employers violated Section 8(a)(1) of the National Labor Relations Act (NLRA) by maintaining arbitration agreements with class action waivers. Also, the NLRB held the employers violated Section 8(a)(1) because they promulgated the arbitration agreements as a response to employees' wage and hour class or collective actions.
On April 29, 2016, in two separate 2-1 decisions, Amerisave Mortgage Corporation and Tarlton and Son, Inc., the panel (Board) heading the NLRB's judicial functions affirmed the administrative law judges' (ALJ) holdings that the employers violated Section 8(a)(1) of the NLRA by maintaining, and requiring employees to sign, arbitration agreements that waived their employees' right to pursue class or collective actions in any forum. The Board also affirmed the ALJs' holdings that the employers violated Section 8(a)(1) for the independent reason that they promulgated the arbitration agreements with class and collective action waivers in response to employees' wage and hour class and collective action lawsuits. (363 N.L.R.B. No. 174 (Apr. 29, 2016); 363 N.L.R.B. No. 175 (Apr. 29, 2016).)
In dissent, Member Miscimarra challenged the majority's:
Further conflating of class and collective action procedures with protected concerted activity.
Continuing to hold that litigation to enforce arbitration clauses with class and collective action waivers is "objectively baseless." Federal courts, including the US Court of Appeals for the Fifth Circuit, which denied enforcement of D.R Horton and Murphy Oil, have roundly rejected the Board's analysis.