This Note attempts to bring clarity to the questionable legality of class action waivers in employment contracts by examining the two competing statutes at issue—the National Labor Relations Act (NLRA) and the Federal Arbitration Act (FAA)—the Supreme Court’s cases on the issue, and the arguments for and against such waivers advanced by the Second, Fifth, Seventh, Eighth, and Ninth Circuits, which have all directly addressed the question. After providing an overview of these two statutes, the agency that administers the NLRA, and the evolution of the Supreme Court’s jurisprudence on the topic, this Note discusses the Supreme Court’s most recent cases addressing mandatory class action waivers. This Note will go on to elaborates the current circuit split on the issue, examining the main cases from the five circuits that have directly addressed the issue. Finally, this Note analyzes the issue in light of the statutes, Supreme Court precedent, the circuit courts’ reasoning, and competing policy arguments, and argues that collective action waivers in employment contracts should be unenforceable.
Benjamin M. Redgrave,
The Legality of Class Action Waivers in Employment Contracts,
Notre Dame L. Rev.
Available at: http://scholarship.law.nd.edu/ndlr/vol92/iss4/13