Horton appealed

The NLRB's decision in D. R. Horton has been appealed to the Fifth Circuit. This is the case where the NLRB found an arbitration policy waiving class or collective relief on employment law claims interferes with employees rights under the NLRA. Our prior post is here.

Activist NLRB

Remember AT&T Mobility v. Concepcion?  Many thought the decision would lead many employers to adopt arbitration requirements that would prevent employees from pursuing class or collective employment claims. Last June we posted on the NLRB's request for briefs concerning compelled waiver of class arbitrations. The NLRB has ruled and its good news for employees. Employers who try to compel employees to waive all rights to a judicial forum for employment disputes violate the NLRA if the arbitration agreement also prohibits group, collective or class arbitrations.  The NLRB finds collective pursuit of such claims to be protected concerted activity. While employers may impose a requirement that individual claims must be arbitrated as individual claims, they may not also prevent employees from pursuing group claims in a judicial forum. The decision, D.B. Horton, Inc. may be downloaded here.

Hating Arbitration

Some attorneys really do not like the Supreme Court's direction on compelling arbitration of employment disputes. Check out "Separate but Unequal" from Cliff Palefsky. To give you an idea of the content, here's a money quote: "Mandatory arbitration is a cancer in our justice system based on a phony public policy and legal and factual fictions."

Activist Board considering class action issue

What an activist the NLRB has become. It seems ready to consider finding a ban on class action claims enforced by a mandatory arbitration agreement violates the NLRA. It has solicited briefs on the following:

Did the Respondent violate Section 8(a)(1) of the Act by maintaining and enforcing its Mutual Arbitration Agreement, under which employees are required, as a condition of employment, to agree to submit all employment disputes to individual arbitration, waiving all rights to a judicial forum, where the arbitration agreement further provides that arbitrators will have no authority to consolidate claims or to fashion a proceeding as a class or collective action?

Pending case D. R. HORTON, INC. 12-CA-25764. Searchable here.

Arbitrate or not?

The Supreme Court rendered an interesting decision in a case where an employer sued a local union for alleged violations of the no strike provisions of a collective bargaining agreement and an international union for tortious interference with the CBA. The local union claimed there was no violation of the CBA because it was not ratified as of the time of the alleged violation of the no strike clause. The 7 member majority opinion (Thomas) held the ratification date issue was one for a court to decide, rather than an arbitrator. A unanimous court refused to extend "federal common law" to include tortious interference with a contract  as a claim cognizable under LMRA § 301. But the really interesting part is after the jump.

Arbitration nixed

Over the weekend President Obama signed into law a provision of the defense spending bill which prohibits military contractors from enforcing arbitration clauses in employment contracts. In significant part the amendment is in reaction to a situation so bad even the Fifth Circuit refused to compel arbitration of all claims.

Time to move on

Here's an example of an anti-EFCA piece beating the dead horse of no secret ballot elections. Assuming the 16% support for card check is an accurate figure as it appears to be, its time to move on to the objectionable aspects of compromise legislation, like quickie elections and binding arbitration of first contracts. At this point all a message like this does is make it appear the sole evil is the absence of a secret ballot election.

Fifth Circuit rejects arbitration of claims arising out of an employee's alleged rape in Iraq

A Halliburton employee allegedly gang raped in Iraq by co-workers raised assault and battery, intentional infliction, negligent hiring/retention and false imprisonment claims against her employer. The employee's employment agreement required arbitration of claims "related to you employment and "personal injury claims arising in the workplace. The Fifth Circuit affirmed a district Court's refusal to compel arbitration of her claims for (1) assault and battery; (2) intentional infliction of emotional distress arising out of the alleged assault; (3) negligent hiring, retention, and supervision of employees involved in the alleged assault; and (4) false imprisonment.  More after the jump
The employee's Title VII claim and other claims were found to be arbitrable. The appellate court also affirmed the staying of the litigation claims until the arbitration was concluded. In reaching this result the 5th Circuit noted a court must focus on the factual allegations to determine if arbitration is required. The allegations included "(1) Jones was sexually assaulted by several Halliburton/KBR employees in her bedroom, after-hours, (2) while she was off- duty, (3) following a social gathering outside of her barracks, (4) which was some distance from where she worked, (5) at which social gathering several co-workers had been drinking (which, notably, at the time was only allowed in 'non-work' spaces)." Both the district court and the 5th Circuit agreed, “Plaintiff’s bedroom should [not] be considered the workplace, even though her housing was provided by her employer”.