Joan Lopez Pens Article on NLRB Collective Action Waivers Decision for Business Law Today
New York, N.Y. (December 4, 2019) – New York Labor & Employment Associate Joan B. Lopez recently wrote an article for Business Law Today about an August 2019 decision of the National Labor Relations Board (NLRB) on the issue of collective action waivers used by employers. In the article, “Arbitration Agreements with Class and Collective Action Waivers Do Not Violate the NLRA,” Ms. Lopez analyzes the NLRB’s decision in Cordúa Restaurants, Inc. and Steven Ramirez and Rogelio Morales and Shearone Lewis, 368 NLRB No. 43 (2019), which reaffirmed the lawfulness of an employer’s ability under the National Labor Relations Act (NLRA) to require employees to waive their option to file or participate in class and collective actions.
First, Ms. Lopez provides some background on the Cordúa case, and then she looks at the two issues of first impression the NLRB dealt with: (1) whether the NLRA prohibits employers from promulgating agreements with class and collective action waivers in response to employees opting into a collective action; and (2) whether the NLRA prohibits employers from threatening to discharge an employee who refuses to sign a mandatory arbitration agreement containing class and collective action waivers.
Ms. Lopez delves into the NLRB’s negative answers on both of those issues, noting the somewhat contradictory nature of the decision, which relied heavily on the U.S. Supreme Court decision in Epic Systems Corp. v. Lewis, 138 S. Ct. 1612 (2018), which held that arbitration agreements with class and collective action waivers in the employment context are generally enforceable.
Ms. Lopez also discusses the dissenting opinion from one NLRB member and concludes that “[d]espite the lack of clarity in some areas of the [NLRB]’s decision, it is undeniable that Cordúa is an addition to an employer’s litigation toolkit that offers legal support to limit or reduce an employer’s financial exposure in wage-and-hour class and collective actions.” However, employers should still be cautious as “utilization of these class and collective action waivers in arbitration agreements is not without its limitations.”
You can read the full article on Business Law Today.