On May 21, 2018, the U.S. Supreme Court in Epic Systems Corp. v. Lewis, a 5-4 opinion written by Justice Neil Gorsuch, ended a six-year dispute started by the National Labor Relations Board’s 2012 decision in D.R. Horton. The board in D.R. Horton held that mandatory arbitration agreements that contain class and collective action waivers violate Section 7 of the National Labor Relations Act. In rejecting the board’s reasoning in D.R Horton, Justice Gorsuch wrote that the Federal Arbitration Act instructs that “arbitration agreements providing for individualized proceedings must be enforced” and neither the FAA nor the NLRA suggest otherwise. Therefore, employers do not violate the NLRA if they require workers to forgo the ability to pursue class actions by including the class waiver provisions in arbitration agreements that must be signed as a condition of employment.
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