When the Supreme Court held in American Express Co. v. Italian Colors Restaurant, 133 S. Ct. 2304 (2013), that the Federal Arbitration Act does not permit courts to invalidate a contractual waiver of class arbitration on the ground that the plaintiff’s cost of individually arbitrating a federal statutory claim exceeds the potential recovery, many employers in the financial services industry, if they had not done so already, strengthened the language of their mandatory arbitration provisions and policies to include explicit class action and class arbitration waivers. Notwithstanding the American Express decision and earlier Supreme Court decisions that have paved the way for the enforceability of contractual class action waivers, however, the National Labor Relations Board has been saying, in essence, “not so fast.”
On Epstein Becker Green’s Management Memo blog, my colleague Jill Barbarino reviews the National Labor Relations Board’s ruling in Murphy Oil that revisited and reaffirmed its position that employers violate the National Labor Relations Act by requiring employees covered by the Act (virtually all nonsupervisory and non-managerial employees of most private sector employees, whether unionized or not) to waive, as a condition of their employment, participation in class or collective actions.
Click here to read the Management memo blog post in its entirety.