On August 23, the U.S. Court of Appeals for the Ninth Circuit in found in Morris v. Ernst and Young, LLP, that an arbitration agreement requiring employees to bring “separate proceedings”—thus barring collective, class, or group arbitration – violated the employees’ right to engage in protected concerted activity under Section 7 of the National Labor Relations Act. The NLRB has taken the same position since its 2012 decision in D.R. Horton, Inc.  The Morris decision appears to mark the second time that a U.S. court of appeals has agreed with the NLRB. The Seventh Circuit recently agreed with the Board. On the other hand, the Second, Fifth, and Eighth circuits have rejected the Board’s position. The Ninth and Seventh circuits say that the Board’s position does not conflict with the Federal Arbitration Act, because that law has a provision stating that arbitration agreements are “enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” (Emphasis added.) Thus, these courts reason, because the requirement to proceed separately violates the NLRA, the FAA does not require that it be enforced. These courts also say that the right of employees to proceed collectively is a substantive – not procedural – right that cannot be waived in an arbitration agreement. The current and growing split among the federal circuits (as well as some state appeals courts, including the California Supreme Court) on this issue of importance to employers, employees, and the current NLRB majority arguably makes the issue ripe for review by the U.S. Supreme Court.