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High Court Mulls NLRB Decision

The U.S. Supreme Court agreed to review a National Labor Relation’s Board decision making it illegal for arbitration clauses in owner-operator agreements that require owner-operators to waive any future participation in class action lawsuits.

In 2012 the NLRB ruled that class action lawsuit waivers can’t be part of arbitration agreements where workers are covered by federal labor law.

The board said the waivers limit employees’ rights to pursue “concerted activities” to advance their “mutual aid or protection” protected by law.

The waivers are significant because some court decisions overturning the independent contractor status of owner-operators, including those involving FedEx Ground and southern California port drivers, were the result of class action lawsuits (AA, 7-31-15, P. 1).

“Whether such agreements are enforceable has been a hotly contested issue for several years now, particularly in cases involving wage-hour disputes,” points out attorney Michael S. Kun of the law firm of Epstein Becker Green.

“There are many cases across the country in which parties are currently debating whether class action waivers are enforceable,” he observes. “One would think that most, if not all, of those cases will now be stayed while the courts await the Supreme Court’s ruling.”

Most federal courts have disagreed with the NLRB on this policy when they heard cases challenging it, including scores of lower federal courts and three U.S. Appeals Courts – normally the last judicial stop before approaching the High Court.

The Supreme Court agreed to hear the case because two federal appeals courts recently went in the opposite direction, upholding the NLRB position and creating a circuit split that can only be resolved by the High Court.

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