By Brad E. Bennett*
As Z&R recently reported, on October 26, 2015, the 5th Circuit Court of Appeals scolded the National Labor Relations Board’s (NLRB) attack on mandatory arbitration agreements in the Murphy Oil decision. Murphy Oil was the second time in two years that the 5th Circuit overturned the NLRB’s position regarding class waivers in mandatory arbitration agreements. Undeterred, the NLRB is at it again in Acevedo v. Amex Card Services Co., case number 28–CA–123865.
In Amex, the NLRB once again ordered an employer to remove sections from its mandatory arbitration policy and from its employee signature form that require employees to waive their right to bring class and collective employment actions. Even though the employer’s arbitration policy clearly stated that individual employees were not barred from filing charges with the NLRB, the form employees had to sign acknowledging receipt of the policy did not include that language. As a result, the NLRB found that the policy and signature form, when read together, created an “ambiguity” that could lead workers to think they had no access to the NLRB.
In deciding Amex, the NLRB relied on Murphy Oil for the proposition that a company violates the NLRA by requiring employees to waive their right to bring class and collective claims. The NLRB simply ignored the glaring fact that the 5th Circuit overturned the NLRB’s position in the appeal of Murphy Oil, as it did in the previous case of D.R. Horton. In Murphy Oil, just like Amex, the employer required employees to sign arbitration agreements that prohibited class and collective actions. Murphy Oil also revised its arbitration agreement to state that employees were not barred from “participating in proceedings to adjudicate unfair labor practice charges before the” NLRB, similar to the wording in Amex’s arbitration agreement. The 5th Circuit made it clear that an employer does not engage in unfair labor practices by enforcing an arbitration agreement prohibiting employee collective actions and by requiring employment-related claims to be resolved through individual arbitration. The 5th Circuit also found that arbitration clauses that expressly state they do not prohibit individual employees from participating in proceedings before the NLRB cannot be reasonably interpreted otherwise.
Based upon the 5th Circuit’s previous holdings of Murphy Oil and D.R. Horton, the NLRB may once again be overturned should Amex decide to appeal. What should employers, who have arbitration agreements, do in the interim? Since the NLRB continues to defy federal courts by attacking arbitration agreements, employers should have their arbitration agreements reviewed to ensure that they comply with the 5th Circuit’s position. Taking time to review an arbitration agreement now may provide your company with the legal shield it needs should the NLRB decide to make it the next target for an attack.
*Brad E. Bennett, an OSBA Certified Specialist in Labor and Employment Law, practices at the firm’s Columbus office. He is well versed in all areas of labor and employment law including assisting employers with the implementation and administration of alternative dispute resolution agreements. If you have any questions about arbitration agreements or other labor/employment matters, please contact: Brad E. Bennett | beb@zrlaw.com | 614.224.4411
