A great deal of intellectual energy has been spent on the issue of whether various employment arbitration agreements are enforceable, but the debate pretty much comes down to two camps. Over 80 years ago, in response to judicial reluctance to enforce arbitration agreements, Congress passed the Federal Arbitration Act. Virtually every court on both sides of the debate cites this statute and parrots the language of the Act and the Supreme Court opinions requiring the enforcement of arbitration agreements and stating the strong public policy favoring their enforcement. Some courts, most notably the Supreme Court, believe this language. Others simply do not, and appear willing to find or create any argument why they should not be enforced, particularly where class actions are involved.
The Supreme Court in 2010 and again in 2011 recognized the importance of enforcing arbitration agreements even when they did not permit class actions. AT&T Mobility v. Concepcion, 131 S. Ct. 1740 (2011); Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 130 S. Ct. 1758 (2010). These cases not only dispelled the notion held by some courts that the availability of class action arbitrations was a prerequisite to the enforcement of such agreements, but discussed in detail the practical and policy reasons why that was so.
Only two weeks ago, in D.R. Horton, Inc., Case No. 12-CA-25764 (dated Jan. 3, 2012), an undaunted National Labor Relations Board concluded, in spite of these holdings, that a class action waiver contained in an arbitration agreement constituted an unfair labor practice. That decision has generated a host of controversy both for its procedural irregularities and its analysis, but raised the question of the enforcement of class action waivers in the employment context.
The dust has not yet begun to settle on that decision, but it has now already been rejected by at least one court. In LaVoice v. UBS Financial Services, Inc.pdf., Case No. 11 Civ. 2308 (S.D. N.Y., Jan. 13, 2012), the plaintiff was a financial advisor for the defendant who sought to assert a federal collective action for violation of the FLSA and a Rule 23 class action for alleged violations of New York State law. The defendant moved to compel arbitration on an individual basis under arbitration agreements the lead plaintiff had signed. Those agreements also contained class action waivers.
The district court had little difficulty in concluding that Concepcion and Stolt-Nielsen dictated enforcement of the agreement. It found that they had overruled prior Second Circuit authority that had cast doubt on the enforceability of class action waivers in the arbitration context.
Following that analysis, the court simply declined to follow D.R. Horton. Instead, it found that nothing in a single-plaintiff arbitration undermined federal statutory rights. It noted that the plaintiff asserted a substantial individual claim and that he would be entitled to payment of his attorney fees if he prevailed. It rejected the complaints by plaintiff’s counsel that the case would not be sufficiently lucrative for him to pursue on an individual basis. Having rejected the plaintiff’s arguments, the court ordered that the claims be arbitrated.
LaVoice is but one of the first, if the first, decision addressing this issue in the wake of D.R. Horton. There are sure to be many others.
The Bottom Line: At least one court has already rejected the most recent view of the NLRB that class action waivers are unenforceable.