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Supreme Court Hears Argument on Validity of Class Action Waivers in Employment Arbitration Agreements

The United States Supreme Court heard a one-hour consolidated oral argument in three arbitration cases involving the intersection of the National Labor Relations Act and the Federal Arbitration Act on October 2, 2017. Epic Systems Corp. v. Lewis, No. 16-285; National Labor Relations Board v. Murphy Oil USA, No. 16-307; Ernst & Young LLP v. Morris, No. 16-300. The argument was the first of the Court’s 2017-2018 term.

Arbitration agreements requiring employees to waive their right to bring or participate in a class or collective action have long been enforced pursuant to the Federal Arbitration Act. In the three cases heard on October 2, the Court is asked to resolve a split among the U.S. Courts of Appeals (Fifth, Seventh, and Ninth Circuits) over whether such arbitration agreements violate employees’ rights under the National Labor Relations Act to engage in “concerted activities” in pursuit of their “mutual aid or protection.”

The Court’s decision is expected to provide welcome certainty to both employers and employees on the issue of class waivers in arbitration agreements.

During the argument, four justices (Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan) asked attorney Paul Clement (representing all three employers in the argument) and Deputy Solicitor General Jeffrey Wall (representing the U.S. government’s position) questions suggesting it is their view that these types of arbitration agreements are irreconcilable with the NLRA. Conversely, Chief Justice John Roberts and Justice Samuel Alito asked questions suggesting that they hold the opposite view. National Labor Relations Board General Counsel Richard Griffin argued on behalf of the agency. Justice Anthony Kennedy noted during his questioning of Griffin that employees could still engage in protected concerted activity if they collectively funneled resources and information to a single attorney who could represent each employee in an individually-initiated arbitration proceeding initiated individually. Justices Clarence Thomas and Neil Gorsuch did not ask any questions.

While one cannot predict the outcome or its timing with any certainty, a decision is expected in early 2018. 

Jackson Lewis P.C. © 2017

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About this Author

Samia Kirmani, Jackson Lewis Law Firm, Unemployment Counseling Attorney
Principal

Samia M. Kirmani is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. She concentrates her practice in employment counseling, training and litigation on behalf of management.

Ms. Kirmani provides practical legal advice to clients on various employment law issues, including discrimination, health and leave management, reductions in force, retaliation and whistleblower matters, individual separations, and employee relations issues. Ms. Kirmani also assists clients with policy creation, revision and...

617-367-0025
David E Nagle, employment attorney, tort claims, Jackson Lewis Law Firm
Principal

David E. Nagle is a Principal in the Richmond, Virginia, office of Jackson Lewis P.C. He is frequently called upon to counsel and represent employers with respect to a wide range of issues arising in the workplace, including claims based on allegations of employment discrimination, wage payment disputes, wrongful discharge, breach of contract, and various other statutory, contract and tort claims.

Mr. Nagle has considerable experience in trial and appellate courts enforcing arbitration agreements, including his successful argument on behalf of the employer inCircuit City Stores v. Adams, 532 U.S. 105 (2001), in which the Court held that the Federal Arbitration Act requires judicial enforcement of agreements to arbitrate workplace disputes. His practice also includes traditional labor law matters, where he assists employers with union avoidance, collective bargaining, unfair labor practice charges, and labor disputes. He is a member of the Panel of Arbitrators of the American Arbitration Association.

804-212-2850
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
Daniel D. Schudroff, Jackson Lewis, Employment Litigation Lawyer
Associate

Daniel D. Schudroff is an Associate in the New York City office of Jackson Lewis P.C.  His practice is focused on traditional labor matters, employment litigation, and counseling.  Mr. Schudroff represents clients in both federal and state courts, as well as before administrative agencies including the National Labor Relations Board, New York State Public Employment Relations Board, Equal Employment Opportunity Commission, New York State Division of Human Rights, New York City Commission on Human Rights, and New York State Department of...

(212) 545-4000
Jeffrey Schwartz, Jackson Lewis Law Firm, Labor Law and Litigation Attorney
Principal, Office Litigation Manager

Jeffrey A. “Jake” Schwartz is a Principal and the Office Litigation Manager of the Atlanta, Georgia, office of Jackson Lewis P.C.

He joined the firm in 2006 after moving from New Orleans, Louisiana, where he practiced labor and employment law for more than seventeen years.

Mr. Schwartz has extensive experience in both traditional labor and employment law. The cases he handles include a variety of state and federal court claims involving discrimination, harassment, retaliation, contracts...

404-525-8200