Category Archives: Class & Collective Action

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Is the Tide Turning Against Class Action Waivers in Arbitration Agreements?

Another federal court of appeals has weighed in on the question of whether requiring employees to waive the right to bring a class action against their employer in arbitration or court as a condition of employment violates employees’ rights under Section 7 of the National Labor Relations Act (NLRA).… Continue Reading

7th Circuit Holds Mandatory Waiver of Class Claims Unlawful; Creates Circuit Court Split

In a decision that creates a split with the 5th Circuit Court of Appeals, the 7th Circuit on May 26, 2016 adopted the National Labor Relations Board’s D.R. Horton rationale and held that a condition of employment requiring employees to waive the right to bring class or collective actions either in arbitration or in judicial … Continue Reading

And The Fight Goes On: Another Circuit Rules Classwide Arbitration a Question for Courts, Not Arbitrators

Another round in the seemingly never-ending arbitration bout has been decided, and this one appears to go in favor of companies seeking to stave off class arbitration. Recently, the Fourth Circuit joined the Third and Sixth Circuits by holding that courts, not arbitrators, decide the issue of whether an arbitration agreement permits class arbitration, unless … Continue Reading

Supreme Court OKs Use of Statistical Sampling in Class Action

The U.S. Supreme Court has upheld the use of statistical sampling evidence to establish liability and damages in a “donning and doffing” overtime class action under the Fair Labor Standards Act (FLSA) and state wage law. Tyson Foods, Inc. v. Bouaphakeo, No. 14-1146, 2016 WL 1092414 (U.S. Mar. 22, 2016). Business groups had urged the … Continue Reading

It’s Unanimous: Employers Face an Uncertain Future After Justice Scalia’s Death

There’s no dissent here.  Justice Scalia’s unexpected passing presents a potential blow to employers in two ways.  First, the Supreme Court lost one of its most staunchly conservative justices, who often sided with management in key employment-related decisions.  Second, his death has left the Supreme Court without a clear majority and no easy mechanism to … Continue Reading

More Money, More Problems: Class Action Waivers in Mandatory Arbitration Hit Roadblocks from the NLRB

Part 2 of a 3-Part Series When considering the potential bill of sale on arbitration, employers that once considered arbitration may sing a different tune. In Part 1 of our 3-part series on mandatory arbitration, we pointed out that, contrary to legal lore, arbitration often proves just as inefficient as litigation against a principle-driven plaintiff … Continue Reading

Class Action Waivers in Employment Arbitration Agreements Are Enforceable, Except for PAGA Claims

In a significant reversal of prior precedent, the California Supreme Court ruled on June 23, 2014, in Iskanian v. CLS Transportation Los Angeles, LLC, No. S204032, that employment arbitration agreements with mandatory class action waivers are generally enforceable in light of the U.S. Supreme Court’s decision in AT&T Mobility LLC v. Concepcion, 131 S. Ct. … Continue Reading

Fifth Circuit Overrules NLRB’s D.R. Horton Decision

On December 3, 2013, the Fifth Circuit U.S. Court of Appeals rejected the National Labor Relations Board’s decision that a mandatory arbitration agreement that waived an employee’s right to bring a class or collective action in any forum was a violation of the National Labor Relations Act. D.R. Horton, Inc. v. National Labor Relations Board, … Continue Reading

Second Circuit Adds to Trend Approving Class Action Waivers In Arbitration Agreements

The Second Circuit U.S. Court of Appeals has become the first federal Court of Appeals to apply the Supreme Court’s recent pro-arbitration decision in an antitrust case, American Express Co. v. Italian Colors Restaurant, 133 S. Ct. 2304 (2013), to the employment setting. Specifically, in an important pro-employer decision, the Second Circuit has ruled that … Continue Reading

Recent Supreme Court Rulings Suggest a Carefully Crafted Class Action Waiver May Be Close to a ‘Silver Bullet’ Against Employment Class Actions

As the Supreme Court winds down its current term with the usual flurry of decisions, employers should make sure not to ignore two decisions on arbitration: American Express Co. v. Italian Colors Restaurant, issued June 20, and Oxford Health Plans LLC v. Sutter, issued June 10. Neither is an employment case, but particularly taken together, … Continue Reading

Unpaid Interns Deemed Employees Entitled to Compensation under the FLSA

Last week, a New York federal district court ruled that unpaid interns working for a film production company were employees under the Fair Labor Standards Act (FLSA) and New York wage and hour law. Glatt v. Fox Searchlight Pictures, Inc., No. 11-cv-6784 (S.D.N.Y. June 11, 2013). The court also conditionally certified a related FLSA class … Continue Reading