We previously posted on the NLRB’s rejection of the application of the Supreme Court’s Concepcion decision in contracts subject to the National Labor Relations Act, invalidating a class arbitration waiver which Concepcion arguably would have upheld (In Re D.R. Horton, Inc.). A district court has refused to follow Horton in an action alleging that the assessment of redemption fees to cash voucher payments rendered wages below the legal minimum, ruling instead that temporary staffing service employees must arbitrate their claims on an individual basis against their employer pursuant to their employment agreements. Relying on Concepcion, the court rejected Plaintiffs’ argument that collective-arbitration waivers in adhesion contracts were per se unconscionable and ruled that the Federal Arbitration Act preempted the state’s unconscionability doctrine in both the consumer contract and employment contract contexts. The district court also excused Defendants’ fifteen-month delay in invoking arbitration, holding that Concepcion constituted a post-commencement “intervening change in the law” that unambiguously weighed against a finding of waiver.

In an opinion on a motion for reconsideration, Plaintiffs argued that Horton prohibits employers from compelling employees to waive their right to pursue collective litigation of employment claims in both arbitral and judicial forums, rendering the arbitration clause void. The court found the NLRA argument procedurally defective because it lacked binding authority and substantively defective because neither state nor federal courts possess jurisdiction over claims based on activity that is arguably subject to the NLRA’s exclusive collective action provisions. Brown v. Trueblue, Inc., No. 10-CV-0514, 2012 WL 1268644 (M.D. Pa. Apr. 16, 2012).