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NLRB says employees have right to sue collectively

A National Labor Relations Board (NLR B) in a recent 2-0 decision rejected arbitration language requiring the employees waive class-action rights. An essence, what this means concerning employment disputes is that workplace employment laws in Indiana and elsewhere will continue to take precedence over provisions of the Federal Arbitration Act.

It has been assumed by certain employers under a recent United States Supreme Court case, AT&T Mobility v. Concepcion, that arbitration agreements could be worded in such a way that would force employees to waive their right to sue as a member of a class. However, despite the Concepcion ruling that held that arbitration agreements between employers and employees must be enforced, the NLRB decision still holds that there is certain language in such arbitration agreements that will violate public policy.

Employment decisions are often intricate and involve many competing policies. When it comes to employment disputes, employees should not automatically decide that they are out of luck simply because an employer produces an agreement that seems to limit the employee's rights in matters of such disputes.

However, it would be in the interest of such an employee to seek the counsel and representation of attorneys that understand the intricacies of employment law. Otherwise, the employee is likely going to end up fighting a dispute against a multi-million dollar corporation.

It must be remembered that arbitration agreements have been challenged for a variety of reasons in the past and thus the NLRB recent decision does not in itself contradict the holding of Concepcion. Arbitration agreements will be continually enforced, but these agreements may be stripped of certain provisions. Nevertheless, the employer to whom this decision was directed may still attempt to appeal this decision to the federal circuit court of appeals.

We will have to see how courts decide such matters in the future.

Source: Human Resource Executive, "Rethinking Arbitration Following NLRB Decision," by Tom Starner, Jan. 18, 2012

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