Class Action Waiver in Arbitration Agreements: A Boon or A Bane?
Recent petitions questioning the validity and enforceability of class action waivers in arbitration agreements have raised another challenge for employers. The National Labor Relations Board (NLRB) argued that since these waivers prohibit employees from engaging in “concerted activities” in pursuit of their “mutual aid or protection”, it interferes with the employees' rights, thus violates NLRA. The Seventh and Ninth Circuits have taken the side of NLRB, however the Fifth, Second and Eighth Circuits have rejected it with the stand that such waivers are not substantive rights under NLRA.
Following these recent updates, it is important to know how to deal with these matters. The Knowledge Group has assembled a panel of key thought leaders to provide the audience with an in-depth analysis of class action waivers in arbitration agreements. In this two-hour LIVE Webcast, the speakers will help employers and employees understand the important aspects of this significant topic. They will provide an in-depth discussion of the enforceability and validity of such waivers. They will also offer best practices in developing and implementing an effective step-by-step guidance in modifying employers' arbitration programs.
Some of the major topics that will be covered in this course are:
- Class Action Provisions in Arbitration Agreements
- Federal Arbitration Act, 9 U.S.C. § 1 et seq. (FAA) - Legal Overview
- Fifth Circuit’s Decision in Murphy Oil USA, Inc. v. N.L.R.B., 808 F.3d 1013 (5th Cir. 2015)
- NLRB's Stand on Class Action Waivers
- Recent Appellate Cases Involving Class Action Waivers
- Effectively Modifying Arbitration Programs
Allegra Lawrence-Hardy, Partner
Lawrence & Bundy LLC
J. Wesley Webendorfer, Attorney
DeWitt Ross & Stevens S.C.
How We Got Here
- Facing an upswing in employment class and collective actions over the last decade, employers have responded with an increased use of arbitration agreements and class action waivers.
- Conflict between the Federal Arbitration Act, which presumes enforceability of agreements with such waivers, and the National Labor Relations Act, which the NLRB says prohibits them, with resultant circuit court split over the issue.
- U.S. Supreme Court will review in three consolidated cases: Murphy Oil USA, Inc. v. NLRB (5th Cir.); Epic Systems v. Lewis (7th Cir.); Ernst & Young LLP v. Morris (9th Cir.)
- Rationale of Circuits That Follow the FAA: Second, Fifth and Eighth
- Rationale of Circuits That Follow the NLRA: Seventh and Ninth
- District Court Decisions That Follow the FAA: Second, Fifth and Eighth
- District Court Decisions That Follow the NLRA: Seventh and Ninth
- Overview of the benefits of arbitration and the rationale for including a class action waiver provision in an agreement to arbitrate.
- Best Practices for implementing arbitration programs and drafting agreements in the context of the present state of the law.
- The possible fate of class action waiver provisions in arbitration agreements at the Supreme Court, with Justice Gorsuch the deciding vote. A look at Gorsuch’s opinions while on the 10th Circuit to anticipate how he may rule.
Who Should Attend:
- Employment Law Attorneys
- Attorneys Defending class actions
- HR Personnel
- In-house Counsel
- Employers and Employees
- Compliance and Risk Officers
- Top Level Management
- Public and Private Companies
- Other Interested Professionals and Organizations
Wes is a government affairs, employment, and litigation attorney in DeWitt’s Madison office. Wes represents businesses, trade associations, and non-profits and has experience advising these entities from hiring to termination as well as defending them when disputes arise.
Wes also has experience drafting legislation and administrative rules as a DeWitt attorney, and as a former legislative assistant in the Wisconsin Senate President’s office. As a government affairs attorney, Wes frequently helps clients navigate Wisconsin’s complex legislative and administrative rulemaking processes and public procurement system. Wes also advises clients on compliance matters related to Wisconsin’s campaign finance and lobbying regulations.
Prior to joining DeWitt, Wes served as a judicial law clerk in the civil division of the Milwaukee County Circuit Court and as the Executive Articles Editor of the Loyola University Chicago Law Journal.
Wes is a government affairs, employment, and litigation attorney in DeWitt’s Madison office. Wes represents businesses, trade associations, and non-profits …
Allegra Lawrence-Hardy uses creativity and results-oriented strategic analysis to develop legal solutions that work for her clients. Allegra focuses her practice on Business and Commercial Litigation, Labor and Employment, and Crisis Management. She has successfully defended Fortune 100 companies throughout the United States and abroad in numerous trials, arbitrations and other forms of alternative dispute resolution.
Allegra is known for her skill in trying cases, negotiating complex settlements and finding creative solutions. Allegra also helps develop processes and tools for improving the efficiency and delivery of legal services.
Allegra often shares her deep litigation knowledge as a prolific author and sought-after speaker. While serving as chair of Sutherland’s Diversity and Inclusion Committee, she developed Sutherland Scholars, a summer pre-law school “boot camp” offered at no cost for students from historically black colleges and universities.
Allegra is a graduate of Yale Law School and is a member of its Executive Committee. She received her undergraduate degree, magna cum laude, from Spelman College. She was a law clerk for the Honorable Susan H. Black of the U.S. Court of Appeals for the Eleventh Circuit.
Allegra is a fellow in the Litigation Counsel of America, which is an invitation-only trial lawyer honorary society and represents less than one-half of one percent of American lawyers. Fellows are selected based upon excellence and accomplishments in litigation, trial work and superior ethical reputation.
Allegra Lawrence-Hardy uses creativity and results-oriented strategic analysis to develop legal solutions that work for her clients. Allegra focuses her …
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Method of Presentation:
Experience in complex litigation or dispute resolution
NASBA Field of Study:
Business Law - Technical
NY Category of CLE Credit:
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About DeWitt Ross & Stevens S.C.
DeWitt is one of the ten largest law firms based in Wisconsin. It has more than 135 attorneys practicing in Madison and Metropolitan Milwaukee, Wisconsin, and Minneapolis, Minnesota, in a variety of legal areas and has the experience to service clients of all scopes and sizes. The firm is known for its work in several areas, including corporate law, employment, environmental, employee benefits, government relations, health care, immigration, international, litigation, real estate, tax, estate planning, family law, personal injury, intellectual property, patents, trademarks and copyright law.
About Lawrence & Bundy LLC
Lawrence & Bundy is a commercial litigation firm skilled in handling complex matters, including class and collective actions, retirement and welfare plan disputes, employment litigation compliance and corporate governance matters, insurance coverage disputes and internal investigations. L&B devotes extensive time and resources to learning our clients' business and earning their trust by resolving difficult challenges with real-world, cost-effective solutions.