July 28, 2014

Advice Memo From NLRB Again Affirms D.R. Horton, Finds Employer Arbitration Agreement Unlawful

The NLRB continued to hold its position on arbitration agreements in an advice memorandum released last week, finding that an employer’s mandatory arbitration agreement violated the NLRA despite the fact that it explicitly excluded claims in front of the NLRB and was silent as to whether it prohibited arbitration on a class basis. The Division of Advice applied the Board’s holding in D.R. Horton, 357 NLRB No. 184 (2012), and held that the fact that the employer interpreted the agreement to prohibit class claims was enough for the agreement to restrict employee’s Section 7 rights.

The D.R. Horton case has been widely criticized as contradicting U.S. Supreme Court cases regarding arbitration (see AT&T Mobility LLC v. Concepcion) and is currently on appeal at the Fifth Circuit.

The NLRB’s advice memo is Concord Honda, Case No. 32-CA-072231, available on the Board’s website here.

See our previous coverage of D.R. Horton:

Board Finds Certain Arbitration Agreements Violate NLRA

California Court of Appeals Not Persuaded by D.R. Horton Inc. v. Michael Cuda

D.R. Horton Files Reply Brief in Appeal of NLRB Decision

In the Spirit of DR Horton, ALJ Extends Protections to Job Applicants

NLRB ALJ Finds Employee Arbitration Policy Unlawful


About the Author

Christine Holst, Labor and Employment Attorney, Barnes Thornburg, Law firm

Christine Holst is an associate in the Grand Rapids office of Barnes & Thornburg and is a member of the firm’s Labor and Employment Law Department. She focuses her practice on general labor and employment matters and defense of Title VII, ADEA, and other employment discrimination cases.


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