Page is loading...
Print Logo Logo

Fifth Circuit Triples Down on the Legality of Class Action Waivers in Arbitration Agreements

On August 10, the Fifth Circuit Court of Appeals – for the third time – rejected the National Labor Relations Board’s (NLRB) position that class action waivers in arbitration agreements are invalid under the National Labor Relations Act. In a short opinion, the Circuit said it was bound by its two previous published opinions directly addressing this issue and ruling that such waivers are valid pursuant to the Federal Arbitration Act.    The ruling last Wednesday was the first time the Fifth Circuit has spoken on the issue since the Seventh Circuit recently held that employers cannot lawfully include class action waivers in arbitration agreements (adopting the NLRB’s rationale). If you’re keeping track at home, the Second, Fifth, and Eighth Circuits have all upheld class action waivers in arbitration agreements, while the Seventh Circuit struck them down. This disagreement among the federal appellate court sets up a classic circuit split that will surely need to be decided by the Supreme Court.   While the NLRB could petition the Supremes to take up the case, the guess here is that the Board will want to wait until a ninth judge is seated on the High Court (taking the late Justice Scalia’s position), hoping to get the most favorable bench possible, as that final Justice may very well decide the fate of this powerful tool favored by employers. Tune in next week (or next year) for the exciting conclusion.


Rare Victory for California Employers: Ninth Circuit Says State Arbitration Law Preempted By Federal Law

February 16, 2023 | Currents - Employment Law, Labor Agreements, State Labor Laws

Future of OSHA Vaccine-or-Test Mandate Looks Tenuous as Supreme Court Weighs In

January 7, 2022 | Currents - Employment Law, Employee Health Issues, Supreme Court Watch

Shut Your Mouth: Policy Prohibiting Bad-Mouthing the Company Ruled Unlawful

August 27, 2020 | Labor Relations, National Labor Relations Board


Do you want to receive more valuable insights directly in your inbox? Visit our subscription center and let us know what you're interested in learning more about.

View Subscription Center
Supreme Court
Trending Connect
We use cookies on this site to enhance your user experience. By clicking any link on this page you are giving your consent for us to use cookies.