A federal court of appeals with jurisdiction over cases arising from Illinois, Indiana, and Wisconsin has sided with the NLRB in the running dispute over the enforceability of class action waivers. Many employers have adopted these waivers as a way to manage risks associated with the every rising tide of wage/hour litigation.

As readers of this blog know, the NLRB lost on this issue in the Fifth Circuit Court of Appeals. The NLRB has also lost on this issue in other courts of appeals. As a result of this split of authority in the circuit courts, it is far more likely that the U.S. Supreme Court will be called upon to decide the question.

A great article authored by two of my colleagues, Mark Knueve and Mike O’Brien, describes the most recent decision in greater detail. A link to their piece can be found here.

As a result of this development, employers who use class action waivers should evaluate the decision closely. Those with employees in one or more of the three states above should be aware that, unless the Supreme Court steps in with a contrary ruling or the makeup of the NLRB changes, such agreements will not be enforceable for those employees.