Earlier this month, the National Labor Relations Board ("NLRB") issued a ruling that the National Labor Relations Act prohibits mandatory arbitration policies forcing employees to give up their rights to participate in class action lawsuits over workplace conditions.
The decision in D.R. Horton, Inc., 357 N.L.R.B. No. 184 notes as a jumping off point that the Board and the courts have previously held that Section 7 protects the right of employees to join together to pursue workplace grievances, including through litigation. The Board, embracing a narrow interpretation of the U.S. Supreme Court’s decision in Concepcion, then concludes that “employees who join together to bring employment-related claims on a classwide or collective basis in court or before an arbitrator are exercising rights protected by Section 7 of the NLRA.” The Board therefore found that Horton, by making the arbitration agreement a condition of employment, explicitly restricted activities protected by Section 7.