Authored by Robert J. Carty, Jr.
As our regular readers already know, the Supreme Court is poised to decide one of the most contentious issues facing the wage-and-hour world—namely, whether class- and collective-action waivers render workplace arbitration agreements unenforceable.
Well, it seemed poised until today. Now we need to sit tight until at least October.
First, a quick recap. A few weeks ago, the Supreme Court consolidated and granted certiorari in three appeals, one each from the Fifth, Seventh, and Ninth Circuits. As consolidated, these cases ask the Court to decide whether Section 7 of the National Labor Relations Act (which protects certain “concerted activities”) prohibits class- and collective-action waivers in workplace arbitration agreements—even though the Federal Arbitration Act strongly favors such provisions.
Given the timing of the Court’s actions, many had speculated that oral argument would occur this April, likely leading to a decision by the end of June. Today, however, the Court notified the parties that oral argument will be scheduled in the 2017 term, which begins this October. In other words, we don’t expect this issue to be decided until sometime after argument—and the earliest argument will occur is October.
We can’t be sure why the Court has decided to set oral argument in the next term, but we can make an educated guess that the new Administration and the pending nomination of Judge Neil Gorsuch played a role. Regardless, we have our eye on the situation and will keep you updated as things develop. Stay tuned.