California Labor &
Employment Law Blog

Jun. 2 2017

Sixth Circuit Joins Ninth and Seventh Circuits on Class Action Waivers

Topics: Arbitration Agreements, Class Actions, Court Decisions

Last week, the Sixth Circuit Court of Appeals issued its decision in NLRB v. Alternative Entertainment, Inc. holding that a mandatory employment arbitration agreement prohibiting class or collective claims violates the NLRA.  With this holding, the Sixth Circuit is now aligned with the Ninth and Seventh Circuits, both of which issued similar decisions last year.  The Second, Fifth, and Eighth Circuits, by contrast, have held that class and collective waivers in mandatory arbitration agreements do not violate the NLRA and are enforceable.  In January of this year, the U.S. Supreme Court agreed to review this issue and to resolve the Circuit split.  Briefing is underway in the three consolidated cases before the Supreme Court.  Briefing is currently scheduled to be completed in August, making oral argument likely in the fall, with a decision shortly thereafter.  Given that the Supreme Court will be issuing the definitive answer on this issue in the near future, the timing of the Sixth Circuit's decision to enter the fray now (rather than staying its pending case) is odd to say the least.  In any event, employers litigating in federal courts in states that are part of the Sixth Circuit (as well as the Ninth and Seventh Circuits) will not succeed in enforcing class or collective action waivers in mandatory employment arbitration agreements unless and until the U.S. Supreme Court issues a decision confirming, once and for all, that such waivers do not violate the NLRA. 

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About the Editor

Robin Largent has a regular presence in California state and federal courts and has been lead defense counsel and appellate counsel for large and small California employers in litigation (and arbitration) ranging from individual discrimination and harassment claims to complex wage and hour representative and class actions. She also leads the firm’s appellate practice, having substantial experience and success handling appeals, writ petitions, and amicus briefs in both state and federal court on issues such as class certification (particularly in the wage and hour arena), manageability and due process concerns associated with class action trials, exempt/non-exempt misclassification issues, meal and rest break compliance, trade secret/unfair competition matters, and the scope of federal court jurisdiction under the Class Action Fairness Act.
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