By John Myers | May 9, 2017

WASHINGTON (Legal Newsline) – Both employers and employees will have to wait a little longer for clarification on whether class action waivers are an acceptable part of employment law, thanks to a recent announcement from the U.S. Supreme Court.

The court has announced that it has extended the deadline for initial briefs from April 28 to June 9 in three consolidated cases, Epic Systems Corp. v. Lewis, No. 16-285; Ernst & Young LLP, et al. v. Morris, et al., No. 16-300; and National Labor Relations Board v. Murphy Oil USA Inc., et al., No. 16-307, that will help resolve the issue of whether arbitration agreements between individual employees and their employers that bar the employees from pursuing work-related claims on a collective or class basis are lawful under the National Labor Relations Act. 

The battle over whether employers have the right to require their employees to sign class action waivers, essentially giving up the right to join a class action lawsuit against their employer, in favor of binding arbitration has been ongoing since at least the filing of D.R. Horton Inc. v. NLRB in 2013.

While many employers support the practice as it helps protect them from very costly lawsuits, the National Labor Relations Board has maintained that class action waivers as a condition of employment are a violation of the Federal Arbitration Act and the National Labor Relations Act. 

As of May 7, the Fifth, Eighth and Second circuit courts of appeal have issued rulings disagreeing with the NLRB and affirmed the validity of class action waivers. However, this debate has been complicated by rulings from the Ninth and Seventh circuits that disagree, which has led to a circuit court split. 

"This means that the current state of the law leaves everyone up in the air," Samia Kirmani of Jackson Lewis told Legal Newsline.

Kirmani said that in addition to the circuit court split, there is another wrinkle in this legal saga, which is that that the latest extension was requested by U.S. Acting Solicitor General Jeffrey B. Wall. In his request, Wall said that the solicitor general's office needs to time to review issue before deciding how to proceed. 

"This indicates that the federal government might be changing its stance, to no longer opposing the class action waivers," she said. 

Unsurprisingly, this change has added further uncertainty to the issue, as it is no longer clear where the federal government stands on the legitimacy of class action waivers, according to Kirmani. 

"This is part of a very interesting microcosm in which the question of where the United States government stands on a wide range of issues under the new administration is in doubt," she said. "It's just one more uncertainty about which direction the Trump administration will take us."

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