Steven Swirsky Quoted in Article, “Complaint Challenges Opt-Out Provision on Class Action Waivers, Solomon Says”

Bloomberg's BNA Daily Labor Report

Steven Swirsky, a Member of the Firm in the Labor and Employment and Health Care and Life Sciences practices, in the New York office, was quoted in an article titled "Complaint Challenges Opt-Out Provision on Class Action Waivers, Solomon Says," written by John Herzfeld.

Following is an excerpt:

A National Labor Relations Board complaint issued in an unfair labor practice case challenges an employer's reliance on an opt-out provision in a mandatory arbitration agreement for new hires, NLRB Acting General Counsel Lafe E. Solomon said April 27 (24 Hour Fitness USA Inc., NLRB, No. 20-CA-35419, complaint issued 4/30/12).

Speaking at a Cornell University program on current board matters before the complaint was issued by an NLRB regional director, Solomon said the complaint would follow in the wake of the board's January decision in D.R. Horton Inc., 357 N.L.R.B. No. 184, 192 LRRM 1137 (2012). The complaint was issued April 30 ?...

Ultimately, the tension between the NLRA and the Federal Arbitration Act in class action waivers must be sorted out by the U.S. Supreme Court, according to management attorney Steven M. Swirsky of Epstein Becker & Green.

Employer advocates have been turning to the Supreme Court's April 2011 decision in AT&T Mobility LLC v. Concepcion, 131 S. Ct. 174 (2011) (81 DLR AA-1, 4/27/11), to support their use of waivers, "but this is not the way it should be litigated," Swirsky said. ?...

Questioning the applicability of that consumer law decision to workplace contexts, Swirsky suggested that instead a thorough look is needed at the interplay of labor law with other federal statutes.