Employment Class Actions

Supreme Court Will Hear Class Action Waiver Cases

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Last week, the Supreme Court consolidated and agreed to hear three appeals of Circuit Court decisions concerning whether class action waivers contained in employment arbitration agreements infringe on employees’ rights under Section 7 of the National Labor Relations Act.  According to the schedule currently in place, briefing on these cases will commence in late February 2017.  Unless a ninth Supreme Court justice is appointed, confirmed, and seated before oral argument in this consolidated appeal, the possibility of a 4-4 decision—and resulting preservation of the status quo–looms large. 

 

Fifth Circuit Reaffirms Enforceability of Class Action Waivers in Employment Arbitration Agreements, But Their Fate Remains Unclear

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Employers commonly use arbitration agreements to minimize the expense and exposure of employment-related claims.   By mandating arbitration of employment disputes, they hope to ensure that these matters are resolved in a cost-effective and confidential manner.  Many arbitration agreements go a step further, requiring employees to pursue their claims individually, and to waive their right to proceed on a class or collective basis.   Unfortunately, the certainty employers have striven to achieve with such agreements has proven elusive in recent years, as the National Labor Relations Board (NLRB) and several courts have found that class action waivers violate employees’ rights.

Although the U.S. Supreme Court’s 2011 decision in AT&T Mobility LLC v. Concepcion upheld the enforceability of class action waivers in the consumer context, in the years since, the NLRB has repeatedly rejected the use of class action waivers in the employment context.  In In re D.R. Horton, the NLRB held that class action waivers inherently infringe on employees’

Supreme Court Permits Use of Statistical Evidence to Prove Classwide Liability, but Declines to Adopt Categorical Rule

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In Tyson Foods, Inc. v. Bouaphakeo, et al., the United States Supreme Court affirmed a judgment in favor of a class of Tyson employees, holding that averaged statistical analysis or so-called “representative evidence” presented by the class’s experts properly established classwide liability in the case.  The Court rejected, however, the requests of all parties and amici curiae to adopt a broad and categorical rule governing the use of representative and statistical evidence in class actions, stating that…