July 5, 2022

Volume XII, Number 186

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July 05, 2022

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Supreme Court’s AmEx Class Action Waiver Decision Spells Trouble for National Labor Relations Board (NLRB)

The Supreme Court yesterday overturned a Second Circuit decision that invalidated arbitration agreements American Express entered into with merchants. The Court ruled the plaintiffs must arbitrate their claims individually, rather than pursuing them court. This is the latest in a string of recent Supreme Court decisions that have supported arbitration agreements containing class action waivers. While not an employment case, the decision should offer further support to employers who choose to implement arbitration programs that include waiver of employee rights to bring class action claims. The Supreme Court’s opinion can be found here (PDF). The Wall Street Journal’s reporting on the case can be found here.

Beyond providing more support for employer mandated arbitration programs, this decision may also signal the end of the line for the NLRB’s D.R. Horton arbitration decision. In that case, the NLRB found that an employer violates section 8(a)(1) of the NLRA by requiring employees as a condition of employment to enter into an arbitration agreement that prohibits class or collective action. The Board concluded that doing so infringed on employees’ rights to engage in concerted action for mutual aid or protection. Our previous reporting on D.R. Horton can be found here.

The company’s appeal of the NLRB’s decision remains pending with the 5th Circuit Court of Appeals. 

© 2022 BARNES & THORNBURG LLPNational Law Review, Volume III, Number 172
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About this Author

John Koenig, Barnes Thornburg Law Firm, Atlanta and Indianapolis, Labor and Employment Law Attorney
Partner

John T.L. Koenig is a partner in the Labor & Employment Department of Barnes & Thornburg LLP. He maintains a national, full-service practice representing management exclusively in all aspects of labor and employment law.

Traditional Labor

Mr. Koenig represents companies in the grievance and arbitration process, collective bargaining, strike preparation, union organizing and election matters, and in unfair labor practice and representational cases before the NLRB. He frequently trains supervisors on effective and...

404-264-4018
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