The Enforceability of Class Action Waivers

NYSBA Labor and Employment Law Journal Spring 2017

Evan J. Spelfogel, a Member of the Firm in the Employment, Labor & Workforce Management practice, in the firm’s New York office, authored an article in the New York State Bar Association (NYSBA) Labor and Employment Law Journal, titled “The Enforceability of Class Action Waivers.”

Following is an excerpt:

One of the most current controversial issues in employment law involves the position of the National Labor Relations Board (the “Board”) that an employer violates the National Labor Relations Act (the “NLRA”) when it maintains an arbitration mechanism that requires employees to pursue any disputes they have with their employer on an individual, rather than on a class or collective basis with other employees. The Board’s position has been adopted by two Circuit Courts-but rejected by three others, and U.S. Supreme Court review seems inevitable.

The Board contends that when an employer requires employees to sign an agreement precluding them from bringing or joining a concerted legal claim regarding wages, hours and other terms and conditions of employment, the employer deprives them of rights guaranteed under Section 7 of the NLRA to engage in concerted activities for employees’ mutual aid or protection, That right, the Board argues, includes the right to join together in class and collective litigation to pursue workplace grievances in court or in arbitration.