Will the Supreme Court be the hero that employers need for their class-action waivers?

Is it just me, or do you guys also quote Varsity Blues whenever you hear the Foo Fighters sing My Hero?

I don’t want your life.

Do your employees sign agreements requiring them to arbitrate all claims, while also prohibiting them from pursuing class or collective actions?

Yeah, me too.

I’ll be damned if I’ll allow my blog minions kids to rise up against me in a collective mutiny to disrupt this blogging empire. For if they have a problem with chunky peanut butter and gooseberry jelly on an English Muffin in lieu of overtime, they can take me on one by one. And split the cost.

And draw their own baths.

So, why might the Supreme Court be interested in arbitration agreements with class-action waivers?

Welp, the National Labor Relations Board has argued that such agreements violate the National Labor Relations Act because they blunt the rights of employees to address working conditions together. And employers have argued that, while these agreement don’t necessarily mesh with the NLRA, the Federal Arbitration Act eats the NLRA for breakfast. That is, an agreement to arbitrate under the FAA is more important than employee rights under the NLRA.

I happen to side with employers. But, then again, this is The Employer Handbook. It doesn’t matter what I think.

Appellate courts have split on this issue. The Seventh and Ninth Circuits have sided with the Board. The Fifth and Eighth Circuits have agreed with employers. And now, the Board has asked the Supreme Court to resolve the circuit split. According to this report from Lawrence Dube, the NLRB petition follows two others from employers that are now pending before the Supreme Court.

With so many employers utilizing arbitration agreements with class-action waivers, it would be a surprise if the Supreme Court passed.

An alternative to an arbitration agreement.

In the meantime, most employers can continue to use arbitrations agreements with class and collective-action waivers, Of course, if the Supreme Court sides with the Board, those agreements may not be worth the paper that they are printed on.

As an alternative, consider a jury-trial waiver. You eliminate the risk of a runaway jury award, while retaining appeal rights — much broader than you would have were you to appeal an unfavorable arbitration award. A judge is also much more experienced hearing discrimination cases than an arbitrator.


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