BN-KB504_edp082_GR_20150828194637Last week, the U.S. Department of Justice (DOJ) made a significant reversal in its position regarding the critical class action waiver cases pending before the Supreme Court. In January, the Supreme Court granted certiorari in three consolidated cases: NLRB v. Murphy Oil USA, Inc.; Epic Systems Corp. v. Lewis; and Ernst & Young LLP v. Morris. The cases address whether employer arbitration agreements prohibiting employees from bringing or participating in class action litigation violate the National Labor Relations Act (NLRA). The Supreme Court’s decision will resolve the current circuit split on the issue.

The National Labor Relations Board (NLRB) in D.R. Horton, Inc., 357 NLRB No. 184 (2012), held that class action waivers violate the NLRA and has consistently adhered to this position, despite setbacks in some Circuits. The Sixth, Seventh, and Ninth Circuits agree with the NLRB’s position, while the Second, Fifth, and Eighth Circuits have upheld the waivers.

Under the Obama Administration, the DOJ filed a petition for a writ of certiorari on behalf of the NLRB defending the Board’s position that class action waivers are unenforceable. After the change in administration, the DOJ stated it has “reconsidered the issue and has reached the opposite conclusion.”

The DOJ’s changed stance combined with the appointment of Justice Gorsuch makes it more likely that the Supreme Court will uphold class action waivers. However, no one will know for sure until a decision is announced in late 2017 or early 2018.

The full amicus brief is available here.

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Photo of Megan E. Bennett Megan E. Bennett

Megan focuses her practice on the representation of management in all aspects of labor and employment law. She assists in providing day-to-day counseling to employers by researching and recommending best practices for companies on human resources issues such as terminations, compliance with employment…

Megan focuses her practice on the representation of management in all aspects of labor and employment law. She assists in providing day-to-day counseling to employers by researching and recommending best practices for companies on human resources issues such as terminations, compliance with employment laws, workplace investigations, and the preparation of policies and employment agreements. Megan aids in the defense of employers in discrimination, harassment, retaliation, and various other employment-related claims before judicial bodies and administrative agencies. Megan assists clients across several industries in preparing annual affirmative action plans and defending against OFCCP audits.

During law school, Megan had hands-on experience, including serving as a Judicial Extern to the Honorable Judge Christopher Boyko of the U.S. District Court for the Northern District of Ohio, a Law Clerk for the Cuyahoga County Prosecutor’s Office, and a Legal Intern for the U.S. Department of Education, Office for Civil Rights. In addition, Megan was a Frantz Ward Summer Associate.

Prior to law school, Megan taught Kindergarten and Pre-Kindergarten in New York City through Teach for America. Megan holds a Master’s degree in Early Childhood Education from Lehman College of the City University of New York. Megan also has a Bachelor’s degree in Political Science and Communications from the University of Dayton.