Arbitration, Employment: Ninth And Fifth Circuits Split On Whether Arbitration Agreements With Collective/Class Action Waivers Violate The NLRB.

In The Fifth Circuit, D.R. Horton Inc. v. NLRB, 737 F.3d 344, Is Dispositive.

     In an unpublished opinion, Citigroup Technology, et al. v. NLRB, 15-60856 (5th Cir. 12/8/16) (per curiam), the Fifth Circuit grants Citigroup’s Petition for Review, and reverses the NLRB’s decision adverse to Citigroup, which seeks to enforce arbitration of an employee’s claims. 

     As pointed out recently in my August 23, 2016 post about Morris v. Ernst & Young (No. 13-16599 (9th Cir. 8/22/16), the Ninth Circuit and Fifth Circuit are not on the same page when it comes to enforcing arbitration agreements containing collective/class action waivers.  The Ninth Circuit held an employer violates sections 7 and 8 of the National Labor Relations Act by requiring employees to sign an agreement precluding them from bringing, in any forum, a concerted legal claim regarding wages, hours, and terms of conditions of employment.

     In Citigroup Technology, supra, Citigroup specifically argued that the NLRB erred in concluding the employee “was engaged in protected concerted activity when she joined the demand for arbitration . . . “  Citigroup prevailed in the Fifth Circuit.

     Whether collective/class action waivers embedded in arbitration clauses violate the NLRB’s rule against prohibiting concerted activity by employees is the subject of petitions to SCOTUS.