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United States Supreme Court Agrees to Review Class Action Waiver Cases

Earlier today, the United States Supreme Court granted certiorari in National Labor Relations Board v. Murphy Oil USA, Case No. 16-307, Epic Systems Corp. v. Lewis, Case No. 16-285 and Ernst & Young LLP v. Morris, Case No. 16-300, consolidating them for argument. The three cases present the question whether class action waivers in employment arbitration agreements violate the National Labor Relations Act (“NLRA”).  The Supreme Court’s action promises the much-anticipated resolution of the circuit split on the issue.

Background

Arbitration agreements that require employees to pursue claims in arbitration rather than in court have long been enforced pursuant to the Federal Arbitration Act (“FAA”). Due to a series of Supreme Court decisions, employers increasingly have included class and collective action waivers in such agreements. However, the National Labor Relations Board (“NLRB”) has taken the position that employers violate the NLRA when they make such waivers in arbitration agreements a condition of employment.

Disagreeing with the NLRB, in D.R. Horton, Inc. v. NLRB, 737 F.3d 344 (5th Cir. 2013) and Murphy Oil USA, Inc. v. NLRB, 808 F.3d 1013 (5th Cir. 2015), the United States Court of Appeals for the Fifth Circuit generally held that class and collective action waivers do not violate the NLRA.  Since then, the Second and Eighth Circuits followed the Fifth Circuit and enforced arbitration agreements requiring employees to submit their employment claims to individual arbitration. (Click for more information on the D.R. Horton case.)

Last May, the Seventh Circuit created a circuit split in Lewis v. Epic Systems Corp., 823 F.3d 1147 (7th Cir. 2016), holding that arbitration agreements that prohibit employees from bringing or participating in class or collective actions violate the NLRA.  Most recently, in Morris v. Ernst & Young, No. 13-16599, 2016 U.S. App. LEXIS 15638 (9th Cir. Aug. 22, 2016), the Ninth Circuit agreed with the Seventh Circuit and the NLRB. (Click for more information on the Epic Systems Corp. case and the Ernst & Young case.)

In September 2016, the employers in Epic Systems Corp. and Ernst & Young and the NLRB in Murphy Oil each petitioned the Supreme Court to decide the issue once and for all. Reflecting the state of uncertainty on the issue, cases presenting this same question are currently before several other Courts of Appeals.

Jackson Lewis P.C. © 2019

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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
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 and employment related torts. Mr. Schwartz is an experienced trial lawyer and regularly handles cases before federal and state agencies, judges and juries.

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Collin O'Connor Udell, Attorney, Jackson Lewis Law Firm, Supreme Court Litigation
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Collin O’Connor Udell is Of Counsel in the Hartford, Connecticut, office of Jackson Lewis P.C. Her practice focuses on United States Supreme Court litigation and on complex or novel issues arising in other federal appeals. She has taken a central role in 35 cases before the United States Supreme Court, some of which have been widely acknowledged as among the most important cases of the last few terms.

In addition to her Supreme Court experience, Ms. Udell has represented clients in a wide variety of cases in the federal courts of appeals, including matters...

860-522-0404
Daniel L. Messeloff, Jackson Lewis, discovery preparation lawyer, class certification attorney
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Daniel L. Messeloff is Of Counsel in the Cleveland, Ohio, office of Jackson Lewis P.C. Mr. Messeloff works with clients to address, manage, and resolve legal issues they may have with their employees, with the goal of minimizing potential legal liability and contributing to his clients’ overall business success.

When legal issues cannot be resolved without litigation, he defends his clients in court, and has the insight and experience to know when to settle claims on advantageous terms and when to aggressively defend claims...

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David E Nagle, employment attorney, tort claims, Jackson Lewis Law Firm
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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 in...

804-212-2850