As we noted in an earlier post, the U.S. Supreme Court granted certiorari in three cases involving the enforceability of class action waivers contained as part of arbitration provisions in employment contracts. Listed below are short summaries of the commentary generated by that news.
Here, the author analyzes the circuit split faced by employers/employees when determining whether or not class action waivers are enforceable in employment contracts containing arbitration provisions. In the Second, Fifth, and Eighth Circuit, class action waivers contained in employment contracts with arbitration agreements are believed to be enforceable under the Federal Arbitration Act (FAA). In the Seventh and Ninth Circuit, the opposite conclusion has been upheld. The author believes the appointment of the ninth Supreme Court member will have a significant impact on this decision. With Scalia on the court, it would have been likely that enforceability of the provisions would have been reached. However, without knowing who the ninth justice will be, it is tough to determine how the Court will fall on this issue.
United States Supreme Court Agrees to Review Class Action Waiver Cases (The National Law Review)
This article provides a brief overview of the landscape of arbitration clauses in general and as they apply to the employment context. Additionally, it explores the National Labor Relations Board’s (NLRB) position on class action waiver provisions found in arbitration agreements. Moreover, the article describes the split in US circuit courts of appeal that have addressed the enforceability of class action waivers contained in employment contracts with arbitration clauses. Lastly, the article gives a brief overview of the three cases that are being consolidated for review in front of the Supreme Court.
Here, the reader will find an article that explains the decision of each Circuit Court as it relates to the consolidation of the three cases before the Supreme Court. The authors explained the decisions of the Fifth, Seventh, and Ninth Circuit Courts of Appeal for each case that was consolidated. Further, the authors compared the impact of the decisions to the ideals of the NLRB and NLRA. This article provides a brief overview of the cases that have been consolidated but does not make predictions as to how the Supreme Court will fall on this issue.
This summary was prepared for ArbitrationInfo.com by Jonathan Doss, a second year student at the University of Missouri School of Law.