Arbitration agreements are practical tools that help employers protect confidential information and avoid the costs associated with traditional litigation. They can also be an extremely effective mechanism for employers to reduce exposure to risky employment litigation and potentially abusive collective action claims under the Fair Labor Standards Act (“FLSA”). We’ve written extensively on the courts’ treatment of such agreements on several occasions.
Nevertheless, since its 2012 decision in D.R. Horton, Inc., 357 NLRB 184, the National Labor Relations Board (“NLRB”) has consistently maintained that the National Labor Relations Act (“NLRA”) prohibits arbitration agreements that require employees to waive the right to pursue labor-related class and collective actions – despite provisions allowing workers to opt out of, or into, the waivers. Continue Reading