September 21, 2020

Volume X, Number 265

September 18, 2020

Subscribe to Latest Legal News and Analysis

NLRB — Employers Facing Litigation Can Modify Existing Arbitration Agreements to Include Class Action Waivers, Penalize Employees Who Refuse to Sign

On Wednesday, August 14, the National Labor Relations Board (NLRB) ruled that an employer can add a class action waiver to an existing employment agreement containing a mandatory arbitration provision. While this result was not surprising in light of the Supreme Court’s 2018 decision in Epic Systems, the NLRB’s decision was significant because it ruled that an employer can make this change even when litigation is already pending, effectively preventing employees from opting in to an existing collective action. Further, the NLRB ruled that an employer can discharge an employee who refuses to sign such a revised agreement. While the NLRB reaffirmed that an employer cannot take any adverse employment action against an employee who either brings or opts in to a collective action, an employer can require employees to sign the revised agreement as a condition of continued employment without running afoul of the National Labor Relations Act. Cordua Restaurants, Inc. NLRB 16-CA-160901.

Prior to this ruling, employers facing litigation were often reluctant to implement mandatory arbitration agreements or modify existing agreements to add class action waivers for fear of facing a claim that such an action would violate the NLRA. The Cordua decision puts that fear to rest and serves as another reminder to review your employment and dispute resolution agreements to ensure that these agreements provide as much protection as possible.

© 2020 Jones Walker LLPNational Law Review, Volume IX, Number 238


About this Author

Christopher S. Mann Labor and Employment Lawyer Jones Walker Law Firm

Chris Mann is a partner in the Labor and Employment Practice Group. He focuses on defending employers in litigation.

Chris primarily represents and advises clients in employment-related disputes, including the Fair Labor Standards Act (FLSA), Title VII, the Family and Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA), and state law counterparts.

Chris also concentrates on defending workers' compensation and related retaliation claims, as well as on advising clients on the handling of such matters. In addition, he routinely consults and advises management and...

Jennifer Faroldi Kogos, Labor & Employment Attorney, Jones Walker Law Firm

A trusted advisor and dependable advocate, Jennifer focuses on litigation, counsel, and training for large employers in the healthcare, retail, and energy industries. She has particular experience defending Fair Labor Standards Act (FLSA) collective actions and litigating a broad range of employment claims, including sexual and other workplace harassment, all forms of discrimination, and wage-and-hour laws. Jennifer defends employers in litigation under Title VII, the Family and Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA), and the Age Discrimination in Employment Act (ADEA), and their state law counterparts. In addition to her experience before federal and state courts, she represents employers before the Equal Employment Opportunity Commission (EEOC) and its state law counterparts.

Jennifer’s practice also includes drafting and negotiating employment, non-competition, and non-solicitation agreements and providing engaging and timely training programs to address new and reoccurring challenges in the workplace.

Mary Margaret Spell, Employment lawyer, Jones Walker

Maggie focuses her practice on cases brought under federal, state, and local employment laws, including Title VII of the Civil Rights Act, the Americans with Disabilities Act, and the Age Discrimination in Employment Act. She regularly offers wage and hour compliance advice and has represented employers in numerous Fair Labor Standards Act collective actions and state-law wage and hour class actions.

Maggie’s litigation experience also includes defending employers in breach of contract and employment-related tort claims. She regularly defends employers and...