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.

NLRB Notice Posting Requirements obligates all private sector employers covered by NLRB Jurisdiction

On August 25, 2001, the National Labor Relations Board (NLRB) issued final regulations (194 pages!) concerning required notifications an employer must give to employees concerning their rights under the National Labor Relations Act. This requirement applies to all covered employers, not just those with a union. The requirements will take effect 75 days from the posting of the final rule in the Federal Register. The target deadline is November 15, 2011. If your company is subject to NLRA jurisdiction posting of the Notice is required. This is similar to the posting requirement imposed on federal contractors by executive order.

The NLRB will provide downloadable versions of the poster for free. Failure to post the notice will be considered an unfair labor practice. Willful failure to post the notice may be considered evidence of improper motivation for other acts alleged to be unfair labor practices. In appropriate situations the NLRB may extend the statute of limitations for the filing of other unfair labor practices where an employer fails to post the notice. Although there are no fines for non-posting the consequences can be substantial.

The posting must be “wherever notices to employees regarding personnel rules and policies are customarily posted and are readily seen by employees, not simply where other legally mandated notices are posted.” If the employer posts personnel rules on the internet or on a company intranet, the notice must also be posted there electronically.

Employers with 20% of their workforce not proficient in English must also post notices in the appropriate languages.

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.