Subverting Workers’ Rights: Class Action Waivers and the Arbitral Threat to the NLRA

The National Labor Relations Act (“NRLA”) was born out of the industrial strife of the Great Depression and provides for employee collective rights in order to prevent the potentially devastating economic consequences of an unstable working environment. The rights provided by the NLRA generally encompass the right to employee collective activity, including collective legal activity and unionizing, which seeks to better working conditions. These substantive rights cannot be waived through any employment agreement, but the Supreme Court has never decided the precise issue of whether pursuing a class action is a substantive right under the NLRA as a protected employee collective activity. The enforceability of class action waivers in employment arbitration agreements has become a hot topic over the past few years since the National Labor Relations Board (“Board”), which administers the NLRA, and the courts have largely split on whether the right to pursue a class action is a substantive right under the NLRA, as opposed to a mere procedural right that can be waived through agreement. This is an especially important issue to low-wage workers because if class action waivers are upheld in arbitration agreements, many low-wage workers, if not all, will be foreclosed from bringing claims regarding employer violations. This preclusion is primarily due to the fact that litigation costs often do not justify workers bringing these relatively low value claims on an individual basis. This Note examines how class actions comport with the substantive purpose of the NLRA and discusses the recent decisions of the Board and the courts regarding class action waivers in employment arbitration agreements. This Note will also offer a few potential resolutions