November 26, 2022

Volume XII, Number 330

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November 23, 2022

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

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).  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, President Trump Nominates Neil Gorsuch to U.S. Supreme Court.)

Jackson Lewis P.C. © 2022National Law Review, Volume VII, Number 34
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About this Author

Ian B. Bogaty, Jackson Lewis, labor arbitration lawyer, contract administration attorney
Principal

Ian B. Bogaty is a Principal in the Long Island, New York, office of Jackson Lewis P.C. Since joining the firm in 2004, he has practiced in traditional labor law areas such as collective bargaining, labor arbitration, contract administration and representation and unfair labor practice proceedings before the National Labor Relations Board and improper practices proceedings before the Public Employment Relations Board.

Mr. Bogaty also regularly counsels clients in the development and completion of preventative labor and...

631-247-4615
Howard Bloom, Jackson Lewis, labor union attorney, unfair practice investigations lawyer, employment legal counsel, bargaining law
Principal

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues. He trains and advises executives, managers and supervisors on union awareness and positive employee relations, and assists employers in connection with union card-signing efforts, traditional union representation and corporate campaigns, and union decertification...

617-367-0025
Philip B. Rosen Jackson Lewis  Preventive Practices Lawyer & Collective Bargaining Attorney
Principal

Philip B. Rosen is a Principal in the New York City, New York, office of Jackson Lewis P.C. He is a member of the firm's Board of Directors and co-leads the firm's Labor and Preventive Practices 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-...

212-545-4000
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