Blogs

In a post on its Labor & Employment Blog (free registration required), Bloomberg BNA highlighted a recent panel discussion titled Employment Class Actions in the Wake of D.R. Horton, which took place during the Annual Luncheon at the 2012 NELA Convention in San Diego, CA on June 21, 2012. The panel was moderated by Cliff Palefsky (McGuinn, Hillsman & Palefsky) and the speakers were Jennifer S. Goldstein (U.S. Equal Employment Opportunity Commission), the Hon. M. Patricia Smith, (Solicitor of Labor, U.S. Department of Labor), the Hon. Lafe E. Solomon (General Counsel, National Labor Relations Board (NLRB)), and NELA member Michael Rubin (Altshuler Berzon LLP).

Despite the fact that it was a consumer case, last year’s U.S. Supreme Court decision in AT&T Mobility, LLC v. Concepcion has had serious implications for employee rights, by leading courts around the country to erect new barriers to employees seeking to vindicate their rights under worker protection laws. While the rulings have not sounded the death knell for class, collective, joint, or representative actions, they have generally made it more difficult for employees to have their day in court and shine a light on employer misconduct. 

However, in D.R. Horton, Inc. and Michael Cuda, the NLRB decided that an employer violates workers’ rights under the National Labor Relations Act (NLRA) when it requires employees covered by the NLRA, as a condition of their employment, to sign an agreement that precludes them from filing class, collective, joint, or representative claims addressing their wages, hours, or working conditions against the employer in any forum, both arbitral and judicial. The NLRB’s ruling is currently on appeal to the U.S. Court of Appeals for the Fifth Circuit.

The BNA blog post quoted Cliff Palefsky, who described D.R. Horton as “one of the truly great and inspiring decisions.” Similarly, Michael Rubin was quoted as saying that D.R. Horton presents a “tremendous opportunity” for workers to resist forced arbitration agreements that prevent class, collective, joint, or representative actions.

In order to assist NELA members and to provide answers to questions that have arisen following the ruling in D.R. Horton, NELA and The Employee Rights Advocacy Institute For Law & Policy (The Institute) released "Ten Frequently Asked Questions About D.R. Horton Inc. And Answers For Employee Rights Advocates," which can be downloaded from the NELA Exchange here.

In addition, NELA and The Institute recently presented a webinar designed to help advocates take advantage of this landmark ruling. Michael Rubin and Michael C. Subit, a partner at Frank Freed Subit & Thomas LLP (Seattle, WA) acted as panelists on the webinar, which was moderated by NELA/The Institute Program Director Rebecca M. Hamburg. The webinar is currently available as a self-paced CLE program, and can be accessed here.

The Institute continues to monitor developments in the courts in the wake of D.R. Horton, help employee rights advocates understand the importance of the decision, and provide them with strategies for using D.R. Horton to resist arbitration clauses containing class, collective, joint, or representative action waivers. For more information about these efforts, please contact Rebecca Hamburg at rhamburg@nelahq.org or Institute Paul H. Tobias Attorney Fellow Matt Koski at mkoski@employeerightsadvocacy.org.