Eighth Circuit Upholds Collective Action Waiver In Arbitration Agreement

The U.S. Supreme Court's 2011 decision in AT&T Mobility LLC v. Concepcion, upholding the enforceability of a class action waiver in a consumer arbitration agreement, was applauded by employers, who initially (reasonably) assumed that Concepcion paved the way for class action waivers in employment agreements. The National Labor Relations Board, however, soon made this area of law murky, holding that Concepcion did not apply in the employment context. In In re D.R. Horton, the NLRB concluded that class action waivers inherently infringe on employees' right under Section 7 of the National Labor Relations Act (NLRA) to engage in protected concerted activity. Earlier this month, in Owen v. Bristol Care, the first appellate decision discussing the issue since In re D.R. Horton, the United States Court of Appeals for the Eighth Circuit rejected the NLRB's reasoning and upheld the enforceability of a class or collective action waiver contained in an employment