National Labor Relations Board Rules Workplace Class Action Bans Are Unfair Labor Practice

National Labor Relations Board Rules Workplace Class Action Bans Are Unfair Labor Practice

In early January, the National Labor Relations Board (NLRB) decided, as Public Justice urged, that workers must be allowed to pursue legal claims as a group.

The NLRB issued its decision that employers cannot require their employees to sign arbitration agreements forcing them to pursue work-related claims individually. The NLRB said such agreements interfere with workers’ protected rights to join together to improve working conditions, and constitute an unfair labor practice.

The ruling applies to most non-management positions in the private sector, both union and non.

The decision has vast implications for American workers, says Public Justice Executive Director Arthur Bryant.

“If corporations can ban their employees from working together and pooling their resources to bring group claims about workplace injustices,” Bryant explained, “they effectively will be immune from civil rights statutes, minimum wage laws, and other regulations protecting workers — even if the corporations have acted illegally.”

Said Public Justice Senior Attorney Victoria Ni, who worked on the case, “Tens of millions of workers in this country who have little bargaining power individually against their employers have been forced to sign away their rights to seek redress as a group. Now, those contract provisions will no longer be allowed.”

Last July, led by Public Justice and the National Employment Lawyers Association (NELA), more than two dozen public interest groups came together on one amici brief to urge the NLRB to hold as it did.

On the other side, employers’ groups argued that a finding of an unfair labor practice would conflict with last year’s Supreme Court decision in AT&T Mobility v. Concepcion, which held that the federal law on arbitration trumped a state supreme court decision declaring unconscionable a mandatory arbitration clause that prohibited consumers from pursuing their claims as a class action.

But the NLRB said Concepcion was different because it did not involve federally protected workers’ rights.

Public Justice’s brief was drafted by Michael Subit of Frank Freed Subit & Thomas LLP in Seattle, with assistance from Ni and NELA’s Rebecca Hamburg.

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