by Nicole Flatow
In the wake of the U.S. Supreme Court’s 2011 ruling limiting class actions in AT&T v. Concepcion, the National Labor Relations Board issued a ruling that gave hope to those seeking to hold their employers accountable.
The ruling invalidated an arbitration agreement that blocked employees from banding together as a class, and it was grounded in a provision of the National Labor Relations Act that protects employees’ right to act collectively. But in the months since the January ruling, all but a few courts have declined to adopt the NLRB’s reasoning, signaling that the administrative decision may not have the impact some had hoped.
Thompson Reuters’ Nate Raymond looks at 16 federal and state court decisions over the past seven months, and finds that 13 of them disregarded the NLRB’s decision. Some found that the Federal Arbitration Act controlled; others that only the Supreme Court’s Concepcion decision applies.
The initial NLRB decision, D.R. Horton, is still pending on appeal to the U.S. Court of Appeals for the Fifth Circuit. And in one decision that did adopt the NLRB’s reasoning, the court distinguished Concepcion, which did not involve a conflict with the NLRA. But thus far, courts have signaled that the NLRB’s decision will have little impact on employees’ access to justice.
D.R. Horton is not the only case with the potential to preserve some limits on arbitration clauses.