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NLRB GC Instructs Regions to Hold on Class Action Waiver Cases Until Supreme Court Rules

By Ian B. Bogaty, Howard M. Bloom & Philip B. Rosen on February 3, 2017
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The General Counsel of the National Labor Relations Board has instructed Regional Offices to hold in abeyance cases involving mandatory arbitration agreements with opt in or opt out clauses. Regions must do the same in cases where an employer argues that the class action waiver in its arbitration agreement is different than the one at issue in Murphy Oil. Regions are to evaluate cases independently.

The GC’s memorandum results from the United States Supreme Court’s recent grant of certiorari in National Labor Relations Board v. Murphy Oil USA (No. 16-307), Epic Systems Corp. v. Lewis (No. 16-285), and Ernst & Young LLP v. Morris (No. 16-300). (Jackson Lewis is co-counsel in the Murphy Oil case).  The cases focus on the common issue of whether arbitration agreements that prevent employees from pursuing work-related claims on a collective or class basis violate the National Labor Relations Act.

In cases covered by the Memorandum, the GC directed Regions to enter informal settlement agreements if the cases have merit and conditioned on the Supreme Court finding class action waivers in arbitration agreements to be unlawful. Recognizing cases may contain multiple issues, Regions are instructed to enter similar informal settlement agreements regarding the class action waiver issue. If the parties are unable to settle the alternative issues in the case, those issues should move forward if the Region finds they have merit.

The Supreme Court’s decision will loom large for employers. President Trump’s appointment of a Justice to fill the seat vacated by Justice Antonin Scalia, who passed away last year, may be the deciding vote in the cases’ outcomes. (See our article on the nominee, President Trump Nominates Neil Gorsuch to U.S. Supreme Court.)

 

 

 

Photo of Ian B. Bogaty Ian B. Bogaty
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Photo of Howard M. Bloom Howard M. Bloom
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Photo of Philip B. Rosen Philip B. Rosen

Philip B. Rosen is a Principal in the New York City office of Jackson Lewis P.C. and a member of the Firm’s Management Committee. Mr. Rosen also leads the firm’s Labor Practice Group. He joined the Firm in 1979 and served as Managing…

Philip B. Rosen is a Principal in the New York City office of Jackson Lewis P.C. and a member of the Firm’s Management Committee. Mr. Rosen also leads the firm’s Labor Practice Group. He joined the Firm in 1979 and served as Managing Partner of the New York City office from 1989 to 2009.

Mr. Rosen lectures extensively, conducts management training, and advises clients with respect to legislative and regulatory initiatives, corporate strategies, business ethics, social media, reorganizations and reductions-in-force, purchase/sale transactions, sexual harassment and other workplace conduct rules, compliance with the Americans With Disabilities Act, wrongful discharge and other workplace litigation, corporate campaigns and union organizing matters, collective bargaining, arbitration and National Labor Relations Board proceedings. He has been quoted by the press on many labor matters, including the National Labor Relations Board’s recent initiatives on protected concerted activity and the proposed Notice Posting requirements.

Read more about Philip B. RosenEmail
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  • Posted in:
    Employment & Labor
  • Blog:
    Labor & Collective Bargaining
  • Organization:
    Jackson Lewis P.C.

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