Whither Thou Goeth D.R. Horton?

Even the administrative law judges for the NLRB can’t agree on the viability of the Board’s holding in D.R. Horton. As reported in this morning’s Employment Law 360, two ALJ decisions handed down last week went different directions on D.R. Horton. One Board ALJ decided that D.R. Horton was not viable in light of the Supreme Court’s decision in American Express Co. v. Italian Colors Restaurant. On the very same day, however, a different ALJ in a separate case rejected similar arguments and held that the Board’s D.R. Horton decision had not been overruled by the American Express decision.

In Chesapeake Energy Corp., Administrative Law Judge Bruce D. Rosenstein determined that the Board’s decision in D.R. Horton that class and collective action waivers violate the National Labor Relations Act “cannot be sustained” in light of the American Express decision. 

At the same time, Judge Gerald A. Wacknov in the Securitas Security Services USA case distinguished the American Express decision on the grounds that it did not deal directly with the interplay between the Federal Arbitration Act and the National Labor Relations Act and, therefore, the Board’s decision in D.R. Horton was not implicitly overruled by the Supreme Court’s decision. Judge Wacknov, as a result, found that the arbitration policy was illegal under D.R. Horton.