One of the hot issues in the courts is whether an employer can
require its employees to sign an arbitration agreement which waives
the right to bring a class or collective action. Obviously, such
agreements, if valid, would be a game changer in fighting back
against the increasing tide of wage and hour litigation. Even if an
employer is not a big fan of arbitration generally, one would
presumably be able to tailor a limited arbitration agreement for
wage and hour claims, which would effectively eliminate the risk of
class actions in this area.
In the Fifth Circuit Court of Appeals, the case to watch is DR
Horton, where the homebuilder is appealing an NLRB decision finding
that such waivers violate the National Labor Relations Act. The
homebuilder filed its opening brief last week arguing that the NLRA
only protects employee rights to collectively assert legal rights
in bargaining and not a non-waivable right to invoke class
procedures in the adjudication of those
