Total Articles: 18
Ogletree Deakins • September 26, 2019
On August 14, 2019, the National Labor Relations Board (NLRB) issued a ruling clarifying several mandatory arbitration issues following the 2018 decision by the Supreme Court of the United States in Epic Systems Corp. v. Lewis. In Cordúa Restaurants, Inc., 368 NLRB No. 43 (2019), the NLRB ruled,
Jackson Lewis P.C. • August 20, 2019
An employer may lawfully issue to its employees a new or revised mandatory arbitration agreement containing a class- and collective-action waiver specifying that employment disputes are to be resolved by individualized arbitration, even if it was in response to employees opting into a collective action (such as a wage lawsuit), the National Labor Relations Board (NLRB) has ruled. Cordúa Restaurants, Inc., 368 NLRB No. 43 (Aug. 14, 2019). The NLRB also concluded that the NLRA does not prohibit an employer from threatening to discharge an employee who refuses to sign such an agreement.
Fisher Phillips • June 19, 2019
Employers may be surprised to learn that the Republican-controlled National Labor Relations Board just issued a unanimous decision invalidating an employer’s mandatory arbitration agreement that could be reasonably interpreted as preventing employees from filing charges with the Board. The June 18 Prime Healthcare decision analyzed the employer’s arbitration agreement using the relatively new Boeing Co. standard for evaluating facially neutral policies and rules that potentially interfere with employees’ protected rights, but fell on the side of the workers. Yesterday’s decision may require you to adjust your arbitration agreements to ensure you stay on the right side of the law.
Ogletree Deakins • May 23, 2018
The decision this week of the Supreme Court of the United States in Epic Systems Corporation v. Lewis will likely prove important on issues other than the arbitration of labor disputes. An extended passage in the opinion (from page 19 through 21 of the slip opinion) is likely to alter the deference rule of Chevron and perhaps that of Auer as well. (Chevron deference pertains to statutes; Auer deference pertains to regulations.)
Fisher Phillips • May 02, 2016
Many of our dealership clients utilize binding arbitration agreements to resolve employee disputes. Arbitration agreements provide a number of unique benefits to those dealerships that wish to avoid the costs and negative publicity typically associated with a jury trial. By asking employees to agree to binding arbitration, dealerships are able to address employment claims in a less formal and more efficient setting than can be found in the federal courthouse.
Ogletree Deakins • April 22, 2014
In yet another attempt to expand protection for employees under Section 7 of the National Labor Relations Act, the National Labor Relations Board (NLRB) is considering a new standard for deferral to labor arbitration that, if adopted, would significantly undermine the finality of arbitration in cases involving allegations arising under Sections 8(a)(1) and (3) of the Act. This proposed change follows recent guidelines issued by the General Counsel instructing NLRB regional offices not to defer unfair labor practice charges unless the issues can be resolved through grievance and arbitration within a year of deferral. In combination, these initiatives will likely result in increased litigation of unfair labor practice charges and employers being forced to relitigate grievances that have been denied under the collective bargaining agreement.
Ogletree Deakins • March 21, 2014
Last week, the Seventh Circuit Court of Appeals decided Brotherhood of Maintenance of Way Employees Division/IBT v. Norfolk Southern Railway Company, No. 12-3415 (March 11, 2014). In the case, an employee claimed to have suffered injuries after driving the carrier’s truck over a bump in the road and hitting his head on the ceiling of the cab. The carrier hired an expert to reconstruct the accident, and the expert’s report concluded that it had been an “extremely remote” chance that the bump in the road had caused the employee’s injury. Later, the carrier held an investigative hearing to determine whether the employee had made false statements concerning his injuries. At the investigation, and without disclosing it prior to the hearing, the employer presented the expert’s report. After the investigation, the employee was discharged. The union tried to vacate the employee’s dismissal in court, but was unable to do so.
Fisher Phillips • February 03, 2014
Arbitration is generally supposed to be faster, cheaper, and more predictable than litigation. Homebuilder D.R. Horton, like many other employers, certainly believed this when, in 2006, it began requiring employees to sign arbitration agreements preventing them from suing in court, or from bringing class-action claims in arbitration. But when employee Michael Cuda and a class of similarly-situated employees sought to pursue collective arbitration of their claims against D.R. Horton for alleged unpaid overtime wages in 2008, none of those expectations held true.
Fisher Phillips • December 13, 2013
Arbitration is generally supposed to be faster, cheaper and more predictable than litigation. Homebuilder D.R. Horton, like many other employers, certainly believed this when, in 2006, it began requiring employees to sign arbitration agreements that prevent them from suing in court or bringing class action claims in arbitration. But when employee Michael Cuda and a class of similarly situated employees sought to pursue collective arbitration of their claims against D.R. Horton for alleged unpaid overtime wages in 2008, none of those expectations held true.
Franczek Radelet P.C • January 29, 2013
The National Labor Relations Board (NLRB) continues with its trend of finding fault with employer policies, this time holding that a non-union company’s mandatory grievance and arbitration policy violated the National Labor Relations Act (NLRA).
Goldberg Segalla LLP • January 24, 2013
This month represents the first anniversary of the controversial decision by the National Labor Relations Board (NLRB) in D.R. Horton, Inc. In D.R. Horton, the NLRB ruled that D.R. Horton, a nationwide homebuilder, violated Section 8(a)(1) of the National Labor Relations Act (NLRA) by requiring employees to sign agreements that: 1) contained a mandatory arbitration provision; and 2) required them to bring all employment-related claims to an arbitrator on an individual basis, as opposed to as a potential class action.
Franczek Radelet P.C • November 09, 2012
The continuing saga over the treatment of the National Labor Relations Board’s (NLRB) D.R. Horton, Inc. decision and the broad implications that it holds for both union and non-unionized workforces recently added another controversial chapter. As we previously reported, in D.R. Horton, the NLRB held that a mandatory arbitration agreement that waives employees’ rights to participate in class or collective actions is unlawful under the National Labor Relations Act (NLRA). Earlier this week, in 24 Hour Fitness USA, Inc., an NLRB Administrative Law Judge (ALJ) not only followed D.R. Horton, but expanded its holding to further restrict the rights of employers to invoke arbitration agreements executed by employees.
Nexsen Pruet • February 07, 2012
On January 3, 2012, the National Labor Relations Board (NLRB) ruled that a class action waiver in a mandatory employment arbitration agreement is illegal. D.R. Horton, Inc. and Michael Cuda, 357 NLRB No. 184 (2012). This decision comes less than a year after the U.S. Supreme Court upheld such a waiver in a consumer arbitration agreement. AT&T Mobility v. Concepcion, 131 S.Ct. 1740 (2011). Further, in the days since the D.R. Horton decision was published, the Supreme Court again has upheld a consumer arbitration agreement that contained a class action waiver. CompuCredit Corp. v. Greenwood, No. 10-948 (Jan. 10, 2012).
Fisher Phillips • June 25, 2010
Four days before retiring from his post as General Counsel of the National Labor Relations Board ("NLRB"), Ronald Meisburg issued a Memorandum that severely limits the use and usefulness of mandatory arbitration agreements in a non-union setting. Although not legally binding, General Counsel Memorandums serve as case-handling guidelines for Regional offices nationwide.
Fisher Phillips • December 15, 2009
On December 8, 2009, the U.S. Supreme Court issued a unanimous decision holding that a panel of the National Railroad Adjustment Board (NRAB) violated the Railway Labor Act (RLA) when it refused to hear five grievance cases on the ground that the railroad and the union had not presented sufficient evidence to show that they had completed the required "conferencing" before arbitration.
Fisher Phillips • April 02, 2009
On April 1, 2009, the Supreme Court upheld the enforceability of arbitration provisions in collective bargaining agreements, which require employees to arbitrate claims under federal anti-discrimination law. While it marks a sharp departure from the established law in much of the country, for employers, it is welcome news.
Ogletree Deakins • April 01, 2009
This morning, the U.S. Supreme Court held that a provision in a collective bargaining agreement requiring employees to arbitrate claims under the Age Discrimination in Employment Act (ADEA) is enforceable. Because the arbitration clause was freely negotiated and “clearly and unmistakably” requires arbitration of age discrimination issues, the Court stated, it had “no legal basis” to strike down the provision.
Ogletree Deakins • January 26, 2007
Court finds second termination for "independent grounds" was permitted.