The opening case of the United States Supreme Court's October 2017 term is a consolidation of three cases that present a Circuit conflict on the issue of whether the collective-bargaining provisions of the National Labor Relations Act ("NLRA") prohibit the enforcement under the Federal Arbitration Act of an agreement requiring an employee to arbitrate claims against an employer on an individual, rather than collective, basis. Several opinions from the Fifth Circuit, including D. R. Horton and Murphy Oil, provide part of the foundation for the Circuit conflict. The Fifth Circuit recently published two additional opinions siding with the camp holding that such waivers are enforceable, and do not violate the NLRA. Logisticare Solutions, Inc. v. NLRB, No. 16-60029 (5th Cir. Aug. 9, 2017) and Convergys Corp. v. NLRB, No. 15-60860 (5th Cir. Aug. 7, 2017). These two new cases arguably are a bit different, because the class action waivers are stand-alone waivers of the right to be part of a class action, and are not contained in arbitration agreements. The Fifth Circuit followed its prior precedent and held that the waivers did not violate the NLRA.
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