The Supreme Court’s decision in AT&T Mobility v. Concepcion, issued yesterday, overturned a Ninth Circuit decision and held that class action waivers in arbitration agreements are permissible under the Federal Arbitration Act (“FAA”).  Concepcion was a consumer case, but the reasoning is almost certainly applicable in the employment context as well.  Yet, amid the buzz on the topic of class action waivers, what comes of employees’ Section 7 rights? 

Section 7 of the National Labor Relations Act (“NLRA”) guarantees employees to right to engage in concerted activities for their mutual aid and protection.  This right applies to all employees, not only employees who are members of a unionized workforce.

On a number of occasions the National Labor Relations Board (the “Board”) has previously found that the filing of certain types of collective or class actions regarding employment matters is protected concerted activity.  For this reason, the Board has taken the position that a mandatory arbitration agreement that could reasonably be read by an employee as prohibiting him or her from joining with other employees to file a class action lawsuit for their mutual aid and protection is unlawful.  See General Counsel Memorandum 10-06.  However, even the Board recognizes that class action waivers are not per se impermissible under the NLRA, provided Section 7 rights are not impaired. 

In fact, the Board opined that the act of pursuing a class claim does not become concerted activity merely because of the incidental involvement of other employees inherent in normal class action procedures.   Nor are an employee’s Section 7 rights violated when he or he waives his or her right to pursue an individual right as a class action.  Section 7 is only implicated where the employees’ actions are for their mutual aid or protection. 

Navigating this distinction when drafting a class action waiver may be complicated.  While there may be many ways to handle the issue, the Board recommends including language explicitly stating that the arbitration agreement does not constitute a waiver of employees’ collective rights under Section 7, including the employees’ right to pursue a covered claim in court on a collective or class action basis, and that no employee will be disciplined, discharged or otherwise retaliated against for exercising their rights under Section 7. 

Employers need not be wed to the Board’s precise recommendations, but, in the wake of Concepcion, employers rushing to adopt arbitration policies containing a class action waiver would be wise to carve out protections for their employees’ Section 7 rights.

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Photo of Mark W. Batten Mark W. Batten

Mark W. Batten is a partner in the Labor & Employment Law Department and co-head of the Class & Collective Actions Group.

Mark represents employers nationwide at all stages of complex employment litigation, including class and collective actions on wage and hour matters…

Mark W. Batten is a partner in the Labor & Employment Law Department and co-head of the Class & Collective Actions Group.

Mark represents employers nationwide at all stages of complex employment litigation, including class and collective actions on wage and hour matters and discrimination claims. Ranked by Chambers USA, Mark is hailed as “a fabulous lawyer, handling interesting and complex cases.” Clients “highly recommend him to anyone seeking litigation counsel in the Boston area,” as well as note “he is responsive, pragmatic and team-oriented, and offers excellent legal advice.”

He assists clients with all aspects of employment policies and practices, including hiring, termination, leaves, accommodation of disabilities, and other matters. Mark also handles diverse civil litigation, including litigation of noncompetition agreements, ERISA matters, discrimination and wrongful termination litigation in federal and state courts; proceedings before the Massachusetts Commission Against Discrimination; wage and hour matters; and labor arbitrations. He is also an experienced appellate attorney both in employment cases and other civil litigation, handling appeals at all levels in the state courts and in the United States Courts of Appeals.

Mark also has substantial experience with traditional labor matters. He regularly represents employers in a variety of industries, including a number of newspaper and media companies, in collective bargaining, practice before the NLRB, labor arbitrations, union organizing campaigns, and day-to-day advice on administration of collective bargaining agreements. He regularly advises clients in both union and non-union settings on diligence matters in corporate acquisitions and financings. He also has experience on behalf of securities firms in arbitrations before the NASD and NYSE of customer and employee complaints.

Mark also practices on behalf of newspapers and other media in newsroom litigation, including libel defense and representation of reporters under subpoena, and has substantial experience in litigation involving access to sealed records and judicial proceedings on behalf of media companies.

Before joining Proskauer, Mark was a trial attorney in the Civil Division of the U.S. Department of Justice in Washington, where he was lead counsel in major litigation for over two dozen federal agencies, ranging from the U.S. Air Force, the CIA, and the U.S. Secret Service to the Department of Housing and Urban Development and the National Endowment for the Arts.

Mark regularly writes and lectures on employment-related matters, including, for instance, MCLE’s Representing Clients Before the Massachusetts Commission Against Discrimination.

In his spare time, Mark is an experienced computer programmer, conversant in C, C++, and other languages. He has ported software between computer operating systems and has published several commercial computer games.