Wyatt Employment Law Report

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Fifth Circuit Refuses to Grant NLRB a Hearing En Banc in DH Horton

By Edwin S. Hopson

The Fifth Circuit Court of Appeals has just denied the NLRB’s request for an en banc rehearing in DR Horton Inc.

In December, 2013, a panel of the Fifth Circuit rejected the Board’s finding that Section 7 of the Act prevented employers, as a condition of employment, from putting in place arbitration agreements that waived an employee’s right to pursue class claims in an arbitration forum. The Fifth Circuit panel ruled that the Board’s decision was not supported by the language in the National Labor Relations Act or its legislative history or purpose. The court also found that there was nothing in the Act that would override the application of the Federal Arbitration Act. Therefore the Board’s decision was in error because the Act does not prevent the enforcement of arbitration agreements of the type at issue.

So DH Horton is not the law anywhere in the Fifth Circuit. The Board may be considering petitioning the Supreme Court, as its next step.