Last year, the U.S. Supreme Court ruled in AT&T Mobility v. Concepcion that the California Supreme Court’s Discover Bank rule – that arbitration agreements negating the ability to proceed collectively/as a class were presumably unconscionable, because of unequal bargaining power – was contrary to the Federal Arbitration Act (FAA), because it was discriminatory against arbitration. See my blog post of May 2011, discussing this decision:
http://bryanschwartzlaw.blogspot.com/2011_05_01_archive.html
Last week, the National Labor Relations Board (NLRB) took a bite out of Concepcion’s impact, when it held that arbitration agreements precluding joint, class, or collective actions violate Section 7 of the National Labor Relations Act, which protects the right to engage in concerted action for mutual aid or protection. See the NRRB’s landmark decision in D.R. Horton, Inc., and Michael Cuda, Case 12-CA-25764, here:
http://www.bryanschwartzlaw.com/horton.pdf
What does this mean for regular folks in the workplace? Simply put, it means that the playing field still has a chance at being level – at least until the Supreme Court gets a hold of the D.R. Horton decision.
If you have a wage/hour claim or some other kind of claim, and you are trying to pursue the claim with other employees/former employees – because there is power in numbers, when you are fighting an employer which has an unequal share of the bargaining power – then it is important to learn whether the employer required you to sign an arbitration agreement barring class or collective action when you were hired. Many employers do so require.
If the employer has a policy making its workers sign contracts prohibiting class/collective/joint action against it, or had such a rule within the last 180 days, then you can file an unfair labor practice charge (ULP) with the NLRB, employing the reasoning of D.R. Horton:
https://www.nlrb.gov/sites/default/files/documents/48/nlrbform501.pdf
Under D.R. Horton, you will still have a chance to make a greater impact than you could make as one employee against a big employer.
If you have questions about how to handle your claims that may be subject to an arbitration agreement and/or a ban on class/collective action, contact Bryan Schwartz Law today: bryan@bryanschwartzlaw.com
DISCLAIMER: Nothing in this posting, for general information only, is intended to create an attorney-client relationship. Bryan Schwartz Law does not represent you unless and until you have a signed representation agreement with the firm. You alone are responsible for any deadlines that concern your claims, until you hire an attorney to represent you.
