Bah Gawd! DOJ turns face and will support class-action waivers in Supreme Court battle



Consider this my attempt at “Serenity now” after chaperoning eight kids eight and younger at a Philadelphia Phillies game on Saturday. With a rain delay. And the tiny dancer featured above. Fortunately, we left the ballpark with all of the kids. I think.

Hopefully, my oldest son, Brooks, enjoyed his birthday.

Remind me, Eric. What’s this class-action waiver thing all about?

  • As a condition of employment, many companies require employees to sign agreements waiving the employee’s right to pursue claims as part of a class of collective action.
  • The National Labor Relations Board, among others, believes that these agreements are unlawful because they purportedly violate the rights of employees under the National Labor Relations Act to engage in protected concerted activity (the right to join together to address working conditions).
  • Conversely, the Federal Arbitration Act allows an employer and employee to agree that all employment-related claims between them will be arbitrated. These arbitration agreements often contain the questionable class-action waiver.
  • Whether an employer can require workers to waive class and collective-action claims is currently before the Supreme Court. More on that here.

What’s the DOJ got to do with it?

Under the Obama Administration, the U.S. Department of Justice took the position that class-action waivers violated the National Labor Relations Act. But, on Friday, I read this article from Lawrence E. Dubé, Ben Penn, and Hassan A. Kanu in  Bloomberg’s Daily Labor Report, in which they report that the DOJ has changed its tune on class-action waivers. In this brief, the DOJ argues that “congressional policy favor[s] enforcement of arbitration agreements.”

Ok, Eric. You’ve buried the lede long enough…

With respect to Bloomberg’s trio of reporters, my sources tell me that the DOJ dramatically delivered its decision personally to the Board and another representative for the other NLRA-advocates. In front of a packed arena audience, hidden video captured the DOJ selecting one of two amicus briefs in a throwback to the tail-end of the halcyon days of professional wrestling.

(Any similarities to David Batista, Ric Flair, HHH, Eric Bischoff, and Teddy Long are purely coincidental.)

This Supreme Court battle is sure to be a real slobberknocker!

P.S. – Sign me up for the DOJ’s wellness plan. Or, maybe I’ll just have one of these.



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