The Ninth Circuit has held that an arbitration agreement that required employees to bring claims in “separate proceedings”, thereby prohibiting class and collective actions, violated the employees’ right to engage in concerted activity under the NLRA.
The 7th Circuit has found that a company's arbitration agreement, which prohibits employees from participating in “any class, collective or representative proceeding,” violated the employees’ right to engage in concerted activity under the NLRA.
On May 16, 2016, the Supreme Court issued its long-awaited opinion in Spokeo, Inc. v. Robins, a case raising the procedural question whether any and all violations of a federal statute are sufficient for a plaintiff to file a lawsuit in federal court.
In concluding that the proper standard for certifying FLSA collective actions is whether the plaintiffs are "similarly situated," the 6th Circuit ruled that the application of the stricter Rule 23 class action standard was inappropriate.
There seems to be no end in sight to the standoff between the NLRB and at least a majority of the federal courts over the legality of arbitration agreements that require employees to waive the right to lead or participate in class or collective actions.
A recent Supreme Court decision indicates it will not necessarily accept a state court’s claim that generally applicable principles of contract law preclude enforcement of an agreement governed by the FAA.