Over the past year, a major rift has emerged between the National Labor Relations Board (NLRB) and the Federal Circuit Courts over the status of class action arbitration waivers in employment contracts. Based on a broad interpretation of National Labor Relations Act (NLRA) Section 7, the NLRB has taken the position that waivers of class action arbitration infringe upon the ability of covered employees to carry out concerted protected activities. The Circuit Courts have uniformly rejected this approach, instead basing their decisions on the emphatic federal policy favoring arbitration. Either the NLRB or the Supreme Court must close this concerted protected activity loophole because at its core, it represents the very policy that the Federal Arbitration Act (FAA) and the Supreme Court have been attempting to eliminate since 1925: hostility toward the arbitral forum.
Thomas E. Robins, The Concerted Protected Activity Loophole: How the NLRB is Undermining the Federal Policy Favoring Arbitration by Invalidating Class Action Waivers, 6 Y.B. Arb. & Mediation 503 (2014).