Читать книгу Employment Law Update - Jonathan Ingber - Страница 30

Can your business use an arbitration clause and class waiver to rid itself of class actions and class arbitrations by employees? On May 21, 2018, the U.S. Supreme Court¹⁷ answered this question in the affirmative and decided Epic Systems Corp. v. Lewis, a case consolidated with Ernst … Young LLP et al. v. Morris and National Labor Relations Board v. Murphy Oil USA, Inc. These cases reached the Supreme Court after the Sixth, Seventh, and Ninth Circuit Courts of Appeal ruled that requiring employees to sign a class action waiver and agree to only bring employment claims in separate arbitration proceedings violated the NLRA and in effect “nullified” the Federal Arbitration Act (FAA). The Second, Fifth, and Eighth Circuit Courts of Appeal had previously ruled the class waiver and compelled separate arbitration did not violate the NLRA and were enforceable provisions under the FAA.

By a 5-4 vote along ideological lines, the Supreme Court held that a class waiver and provisions requiring individual arbitration of employment disputes did not violate the NLRA, and that the FAA did not require a different result. The Court found that Section 7 of the NLRA, which permits employees to engage in certain “concerted activities” in the workplace, did not encompass a right to engage in “concerted activity” via class action suits or class arbitrations. The Court's decision focused on Congressional support for arbitration of disputes in accordance with the FAA, and found that the NLRA has no language that overrides or contradicts the FAA. The Court also held that the Fair Labor Standards Act, which permits class actions, did not supersede the FAA.

To say this case was a significant victory for employers — and a strategic defeat for class action lawyers — likely understates the result. Every employer who is not barred by law or contract from using a class waiver and individual arbitration provisions should carefully consider implementing a class waiver and individual arbitration agreement with its employees. Employers should consult employment law counsel to ensure the agreement is properly prepared, implemented, and enforceable.