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Fifth Circuit refuses to reconsider DR Horton en banc – class action waivers resistant to NLRB attack

Yesterday, the Fifth Circuit denied the NLRB’s petition for en banc review of its December 3, 2013 decision wherein the Fifth Circuit refused to enforce the NLRB’s decision invalidating class action waivers in mandatory employee arbitration agreements. See D.R. Horton, Inc. v. NLRB, --- F.3d ---, 2013 WL 6231617 (5th Cir. Dec. 3, 2013). In the NLRB decision overturned by the Fifth Circuit (In re D.R. Horton, Inc., 357 NLRB No. 184 (Jan. 3, 2012), the NLRB held that D.R. Horton’s mandatory arbitration agreement, which prohibited employees from filing class or collective action claims in any judicial or arbitral forum, violated Sections 7 and 8(a)(1) of the National Labor Relations Act (“NLRA”) by prohibiting employees’ ability to engage in collective action. In reversing the NLRB’s decision, the Fifth Circuit held 2-1 that the NLRB failed to give appropriate weight to the Federal Arbitration Act (“FAA”) and Congressional policies favoring arbitration. In sum, the court concluded that class action waivers in employment agreements are lawful.

Section 7 of the NLRA states that employees have the right to “engage in [ ] concerted activities for the purpose of collective bargaining or other mutual aid or protection.” 29 U.S.C. § 157. Section 8(a)(1) of the NLRA prohibits employers “interfer[ing] with, restrain[ing], or coerc[ing] employees in the exercise of their rights” granted in Section 7. 29 U.S.C. § 158. In a widely discussed 2012 decision, the NLRB found that D.R. Horton’s arbitration agreement, and specifically the restrictions on class or collective actions, violated these provisions. D.R. Horton appealed, arguing that the NLRA does not grant employees a substantive right to class action procedures and that the decision impermissibly conflicted with the FAA. In large part (but not entirely) the Fifth Circuit agreed.

The Fifth Circuit held that prohibiting class action waivers would conflict with the FAA. The Fifth Circuit, applying the U.S. Supreme Court’s reasoning in AT&T Mobility, LLC v. Concepcion, 131 S. Ct. 1740 (2011), found that the NLRB’s prohibition on class action waivers had the effect of disfavoring arbitration because “employers would be discouraged from using individual arbitration,” and requiring class arbitration would “interfere[ ] with fundamental attributes of arbitration and thus create[ ] a scheme inconsistent with the [FAA].” D.R. Horton did not completely carry the day, however. The Fifth Circuit affirmed the NLRB’s holding that the language of D.R. Horton’s arbitration agreement would lead employees to reasonably believe that they were prohibited from filing charges of unfair labor practices with the NLRB itself. Accordingly, the court enforced the NLRB’s decision requiring D.R. Horton to rescind or revise its agreement to clarify that employees are not prohibited from filing unfair labor charges with the NLRB.

The NLRB's decision in D.R. Horton, has been rejected by all of the circuit courts of appeals (Fifth, Second, Ninth and Eighth) and nearly all of the district courts which have considered the issue. Appeals from Board decisions go to the Circuit Courts of Appeal. District court decisions arise where an employee seeks to set aside an arbitration agreement containing a class action waiver on the ground that it conflicts with NLRB law. The district courts in those cases also tend to reject the Board’s position. Of the few cases that went the Board’s way, most are from one of the circuits that later rejected D.R. Horton and, thus, those decisions are now bad law and would go the opposite way if decided today. The few Florida federal courts that mention D.R. Horton held that it was required to follow pre-D.R. Horton Eleventh Circuit law which affirmed use of class action waivers in an FLSA overtime claim. See Caley v. Gulfstream Aerospace Corp., 428 F.3d 1359 (11th Cir. 2005).  The Eleventh Circuit recently sidestepped the issue in Walthour v. Chipio Windshield Repair, LLC, 2014 WL 1099286 (11th Cir., March 21, 2014) in a decision generally viewed as pro-arbitration. 

Will the NLRB petition the Supreme Court to grant certiorari? Probably not until there is a circuit split. Will the NLRB acquiesce and abandon efforts to attack class action waivers? They will one day run out of circuits to peddle this theory.

Therefore what?

Employers should recognize that the issue still is not settled. Although several federal courts of appeal now agree that the Board's position is incorrect, the Board is not bound by those decisions, and even if it does not seek review by the Supreme Court (which is pro arbitration), the Board may ignore the decisions and continue issuing complaints. The final outcome of this issue is tied up in a pending case before the Supreme Court that will be issued in the next few weeks. If the Supreme Court affirms the lower court ruling that the NLRB was improperly constituted at the time D.R. Horton was issued, this could potentially wipe the entire case away. And while that may initially sound attractive, it might only mean that the current Board could take up the issue again starting from square one.

Another potential variable is whether the NLRB will appeal the DR Horton decision to the Supreme Court. I suspect that the NLRB will not appeal. The current Supreme Court (or at least five members of the Court) has expressed an unfailing affection for arbitration. The NLRB may be inclined to defer seeking Supreme Court review until it believes that it has a more favorable majority. The NLRB may simply ignore the court's decision outside the Circuits where it had not prevailed. Or it may ignore the federal court decisions regardless of the jurisdiction in which a case arises. The Board tends to view itself as bound only by Supreme Court decisions, and (on some occasions) views the circuit courts as simply an interesting distraction. The risk exists that the NLRB will issue a complaint against an employer that requires employees to execute class action action arbtration agreements. The NLRB has been accused of operating a rogue agency that will harass employers despite having no legal basis for doing so. In the interim, it is likely that a district court will enforce an otherwise enforceable arbitration agreement containing a class action waiver if the court is presented with a motion to compel arbitration.

The bottom line

While the Fifth Circuit's rejection of D.R. Horton is encouraging, the Board may very well ignore the Fifth Circuit (and the Second, Eighth and Ninth Circuits, which have also rejected D.R. Horton) and continue to issue complaints against employers that use class waivers in mandatory arbitration agreements.

How would this play out?

A plaintiff files a class action lawsuit. The employer moves to compel arbitration. The plaintiff claims the class action waiver is unlawful. It is unlikely that a court would refuse to force the class action waiver based on D.R. Horton. An adverse ruling could be appealed to the Eleventh Circuit. A plaintiff’s attorney may elect not to do so.

Alternatively, the NLRB could issue a complaint based on an unfair labor practice charge. That could be ruled upon by an ALJ in an administrative hearing, and then appealed to the NLRB (although if the case is clean, it could go directly to the Board on a stipulated record, which seems likely on these facts – there would be no litigation other than briefing). The appeal would sit there for a few months or years. The Board will rule against the employer (unless there is some intervening Supreme Court decision) whereupon the decision would be appealed to the Circuit Court of Appeal – either the D.C. Circuit or the Eleventh Circuit (assuming the cases starts in Florida). The appellate court would likely refuse to enforce the NLRB’s order. It would take years for the issue to play out and class actions would be disabled in the interim.

Of course, the risk exists that the courts change directions and start affirming the Board’s decision in D.R. Horton. If the NLRB charge is based on simply requiring the agreement as a condition of employment (i.e., the demand by itself is unlawful), the Board’s remedy would be to require employers to stop doing it, post a notice, but not much more. If the charge is based on an allegedly unlawful termination arising from a refusal to sign, there could be backpay liability for the affected persons. In general, employment law firms are advising employers who want protection from class actions to require the employees to sign arbitration agreements containing class action wiavers, and in the unlikely event that it results in a NLRB charge, fight it out in court.

There is another option, but few recommend it. Employers can permit employees to opt out of the arbitration clause by notifying the company within 30 days. Inertia will work in the employer’s favor. It is comes at the price of allowing employees to opt out, which defeats the objective, and the NLRB disapproves of these agreements too. Employers give up a lot, and get very little protection. But such agreements are slightly easier to defend, and hence, a slightly less attractive target for the NLRB’s enforcement efforts.


EEOC FY 2013 Statistics a Mixed Bag For Employers

Each year around this time we employment lawyers anxiously await the EEOC's release of it's fiscal year statistics.  We want to know whether our warnings to our clients that the EEOC is "increasingly active" and that the number of charges filed is "up" still ring true.  Well, this week the EEOC released its 2013 fiscal year (Oct. 1 - September 30) numbers.  And the numbers are a mixture of good and bad news for employers.

The good news (if you can call it that)  is that there was a significant decrease in the number of charges filed.  In FY 2013, 93,727 charges were filed, which is about 6,000 less than in both 2011 and 2012.  This decline may be an indication that the economy is on the right track, because, in general, the worse the economy the more charges are filed.  Employees who are out of work are obviously more likely to bring claims than those who remain employed. 

The bad news is that the EEOC secured a record amount of settlement dollars from private sector employers - $372.1 million.  This tells me that the EEOC is more agressively investigating charges and bringing lawsuits on behalf of employees.  This is a trend that is likely to continue through the remainder of the Obama presidency. 


Duane Morris Miami Breakfast Briefing Series

We are hosting a series of labor and employment law breakfast briefings in our Miami office, including one on December 5.  The topic for December 5 is “Labor and Employment Law Outlook for 2014”.  Below is the invitation.  I hope that you and/or your coworkers can attend some or all of the sessions.


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Please join us for the first Miami Employment Law
Breakfast Briefing session:


Labor and Employment Law Outlook for 2014





Thursday, December 5, 2013








Registration and Breakfast: 8:30 a.m. to 9:00 a.m.
Program: 9:00 a.m. to 10:00 a.m.
Q-&-A: 10:00 a.m. to 10:15 a.m.








Duane Morris LLP
200 South Biscayne Boulevard, Suite 3400 | Miami, FL 33131-2318








Click here to R.S.V.P. by November 27.








1.00 HRCI credit will be provided.














Mark your calendar for upcoming sessions in the
Miami Employment Law Breakfast Briefing series:









February 6, 2014: Social Media – Employment Law
Implications from Hiring to Firing









April 3, 2014: Alphabet Soup – The Interplay of ADA,
FMLA and the Florida Workers’ Compensation Statute









May 7, 2014: Wage-and-Hour Cutting-Edge Issues –
The Rise of More Sophisticated Lawsuits in Florida






About the Program



2014 promises to be a busy year for labor and employment attorneys, as well as human resources executives. Important new legislation, court decisions and increased administrative enforcement hold the potential to once again change the legal landscape of employment law. In this seminar, Kevin E. Vance, Michael W. Casey III, Teresa M. Maestrelli and Mark J. Beutler will discuss these emerging issues and share strategies that businesses can implement to prepare for the changes in the coming year.



The Miami Employment Law Breakfast Briefing series focuses on emerging issues and legislative developments that affect employers in Miami and beyond. Presented by Duane Morris attorneys from the Employment, Labor, Benefits and Immigration practice, each session offers detailed examples of current workplace and employment challenges, along with practical solutions that employers can quickly and effectively implement.



About Duane Morris’ Employment, Labor, Benefits and Immigration Group



Duane Morris’ Employment, Labor, Benefits and Immigration attorneys provide clients with a wide spectrum of global services—from timely advice on regulatory issues through litigation developments. Our clients benefit from the integration of employment, labor, benefits and immigration services in order to meet the complexities of today’s business environment. Duane Morris’ employment lawyers offer practical counseling designed to help clients achieve their business objectives and resolve potentially disruptive labor and employment disputes.


















Florida Bill Would Protect Employee Social Media Passwords

There is a growing legislative movement to pass laws that prohibit employers from requiring employees to turn over their social media (i.e., Facebook) passwords.  Such a bill was introduced in the Florida Senate on September 25, 2013 by Senator Jeff Clemens, a Democrat from Lake Worth.  A number of other states have either already passed such laws, or have similar bills pending.

In technical terms, the Florida bill would prohibit employers from asking or requiring employees to provide the username and password to social media accounts, from basing hiring decisions on a candidate's refusal to provide such information, and from retaliating against employees who refuse to provide the information.  The bill provides employees and applicants a private right of civil action in court against companies who allegedly break the law.

I am unsure if such a law is necessary or even a good idea, mainly because I'm not aware of any trend by employers to seek or use such information.  If a client were to ask me whether it was a good idea to require their employees to provide access to the private portions of the employees' social media accounts, I would generally say no.  Requiring employees or applicants to provide such information is likely to decrease morale and harm the company's efforts to hire and retain good employees.

Perhaps more important, it is doubtful that employers should even want this type of access.  Too much access can mean too much information about "protected characteristics" or "protected activity" on which employees can bring some type of discrimination or retaliation claim.  For example, we may think we know a lot about our coworkers, but access to a coworker's private Facebook page is likely to open up an entirely different realm of information, such as information about the person's religious and political beliefs, social behaviors (drinking, drugs, sexual activities), and other similar private information.  Employers are generally better off not knowing about this type of information when it comes time to make personnel decisions.

Due to the nationwide trend for passing such laws, I would say this bill has a good chance of passing.  If it does, the law would go into effect on October 1, 2014.  As always, stay tuned for updates on this and other pending employment legislation.


Florida Statute Preempts Local Wage and Benefit Laws

Florida Governor Rick Scott signed into law H.B. 655 (linked below), which preempts laws enacted by counties, cities and other local governmental units that require employers to pay wages and provide employee benefits more favorable than those required under federal and state laws.  The measure thus preempts local laws affecting: minimum wage; health benefits; disability benefits; death benefits; group accidental death and dismemberment benefits; paid or unpaid days off for holidays, sick leave, vacation, and personal necessity; retirement benefits; and profit-sharing benefits. 

Some local laws are carved out and thus survive.  These include laws requiring in certain cases time off for domestic violence victims (Miami-Dade County has such an ordinance).  In addition, the new law does not affect employment laws enacted by federally recognized tribal governments.   

Most importantly, in most situations, Miami-Dade County’s and Broward County’s living wage ordinances will survive.  The new law preserves local minimum wage laws for employees of political subdivisions, and for employers who contract with political subdivisions for goods and services (along with subcontractors of such employers where the contract requires that subcontractors pay the local minimum wage).  

There is one potentially big change for Miami-Dade County’s living wage law. Miami-Dade County’s living wage law, like many such ordinances,  applies to County employees and county contractors.  The law also applies to employers providing services under aeronautical services permits issued by the Miami-Dade Airport.  Thus, aviation service providers must pay a living wage to airport workers.  These covered airport workers include wheelchair assistants, baggage handlers, fuelers, in-flight caterers, among others.  (Skycaps that receive tips are exempt under Miami-Dade County’s living wage ordinance and typically are not paid the living wage.)    With some exceptions, aviation support services  are not provided under contracts or subcontracts with the county; the services are provided under contracts with the airlines.   These workers’ pay does not come from county funds.  But for the requirement that permit holders pay their employees the living wage for services provided pursuant to the permit, the living wage ordinance would be inapplicable.  But the carve out in H.B. 655 does not reach services provided under aeronautical service permits.  An argument can be made that these aviation services providers will no longer be required to pay their workers the living wage. 

This law is good for employers because it provides clarity and uniformity.  The local laws were often obscure, making it difficult for employers with facilities in different localities to comply.

The measure takes effect on July 1, 2013. 

new law.pdf  


Florida state senator proposes public sector workplace civility law

Florida has always been regarded as a "pro-business" state.  We have very few employment laws here, and that's the way employers like it.  I doubt that will change any time soon, as Republicans still dominate our legislature.  But, nationally these are "progressive" times (did you listen to the President's inaugural address?), and there have already been some pro-employee bills introduced in the state legislature this year.  One such bill is the "Abusive Workplace Environment Act", which was introduced earlier this month by Sen. Oscar Braynon, who represents Miami Gardens.

The bill applies only to governmental employers, and seeks to prohibit abusive work environments, defined as those "in which an employee is subject to abusive conduct that is so severe that it causes physical or psychological harm to the employee."  The bill includes a lengthy definition of  "abusive conduct", but the gist is that the law would prohibit the repeated use of "derogatory remarks, insults, and epithets", or any other type of "threatening, intimidating, or humiliating" conduct.  The introduction to the bill claims that this is necessary because "[a]pproximately one-half of all employees directly experience health-endangering workplace bullying, abuse, and harassment, and this mistreatment is approximately four times more prevalent than sexual harassment".

In sum, this bill seeks to make being a jerk or bully illegal in the public workplace.  The bill also includes an anti-retaliation provision, which makes it illegal to fire anyone in retaliation for their making a complaint about workplace abuse.

There will be some who see some merit to this effort.  I have never been the victim of currently illegal forms of harassment (harassment based on sex, race, age, religion, etc...), but I know that a dificult boss can make anyone's life miserable. 

On the other hand, personality conflicts are part of every workplace, and life in general.  Employers, especially public employers, are already hesitant to discipline and terminate employees.  A law such as this would make it more difficult for public agencies to manage their employees, and run their businesses. 

I have no information about this bill's likelihood of passage.  I would guess that it is slim, but we will have to wait and see.


Important Changes to Fair Credit Reporting Act Forms

Those employers that conduct Fair Credit Reporting Act ("FCRA") background checks need to be aware that three important FCRA forms have been revised.  One of the three is the Summary Of Rights form that employers must distribute to employees before obtaining an FCRA investigative consumer report.  As of January 1, 2013, employers must use the new forms, which are available here at Appendices K, M, and N.

The primary reason for the changes is that, pursuant to the Dodd-Frank Act, a new governmental agency, the Consumer Financial Protection Bureau ("CFPB"), has rule-making responsibility for the FCRA.  Previously, the Federal Trade Commission ("FCRA") interpreted the FCRA.

As always, if employers have any questions regarding these changes or the FCRA in general, they should contact labor and employment counsel.


GMCC - Nov. 14 Post-Election Healthcare Reform Briefing

On November 14, the Greater Miami Chamber of Commerce is hosting a post-election briefing on "Navigating Healthcare Reform".  Duane Morris is a sponsor, and our partner Mike Gradisek is speaking.  It should be a good program, with obvious relevance to employers of all sizes in South Florida.  I hope you can attend.

September 13 - GMSHRM Legal Update at Sofitel Miami

The Greater Miami Society for Human Resource Management's ("GMSHRM") annual Legal Update is coming up on September 13 at the Sofitel in Miami.  This is always a great, day-long labor and employment law briefing.  This is my third straight year speaking.  My topic this year will be "The NLRB's Assault on Non-Union Employers", which I think is a particularly relevant topic these days.  There are many other good speakers as well, so I hope you will check it out.

Class/Collective Action Waivers Are Still Enforceable in the Eleventh Circuit

More and more clients have been asking me whether it is wise to require employees to sign mandatory arbitration agreements. My response is generally that there are advantages and disadvantages to mandatory arbitration of employment claims, and that it depends largely on what the client is trying to accomplish.  Many employers these days view the advantages of mandatory arbitration - avoiding jury trials and class and collective actions - as outweighing the disadvantages. 

Recently, however, there has been some question whether class/collective action waivers are enforceable in the employment context.  The National Labor Relations Board issued a ruling earlier this year, In re D.R. Horton, Inc., which held that, at least in certain circumstances, they are not.

Judge Lazzara of the Middle District of Florida issued an important decision on Friday, compelling arbitration of collective action FLSA claims.  At issue was an arbitration agreement that clearly required arbitration of the FLSA claims, including those brought as part of a collective action.  The plaintiffs argued that the collective action waiver was unenforceable as a result of Horton. Juge Lazzara ultimately disagreed, and noted that the law in the Eleventh Circuit is clear on this point - class/collective action waivers in arbitration agreements are enforceable. 

This decision provides clarity on this subject, and is ultimately good news for Florida employers.  This has been a fast moving area of the law in recent years, but, at least for now, it is clear Florida courts will enforce properly drafted arbitration agreements containing class action waviers.




HR Insights Conference - Miami, March 29

The Greater Miami Chamber of Commerce's HR Insights Conference is coming up on March 29 at Jungle Island.  I will be speaking on labor and employment law issues for the third year in a row.  Here is the invite.

This is always a great program for South Florida HR professionals and business leaders.  Note that the invited featured speaker is Secretary of Labor Hilda Solis.  We are hoping she can make it.  I hope you can attend as well.


$168 Million Sexual Harassment Award - Does That Get Your Attention?

These days, I see an increasing amount of non-employment attorneys practicing in the area of labor and employment law.  It may be because employers believe that the risk of monetary exposure in employment cases is low. 

But, every once in a while we get word of a large verdict that reminds us that there can be enormous amounts of money at stake in such cases.  To wit, a California jury last week awarded $168 million to a sexual harassment plaintiff - $42.7 million in lost wages and emotional distress damages, and another $125 million in punitives.  It is thought to be the largest harassment award in history. 

This should be a reminder to all employers of the need to take employee complaints of workplace discrimination seriously, and also to take seriously the lawsuits that later come with many such complaints.  Employers should be careful to select expert labor and employment lawyers to represent them in defense of such suits.  And, if you are an employer that has an employment practices liability insurance (EPLI) policy, make sure that your insurer is assigning cases to actual labor and employment lawyers, and not to personal injury defense lawyers who dabble in labor and employment law. 


EEOC Charges Reach All-Time High

The Miami office of the EEOC released its 2011 numbers last week.  It was a busy year for the agency.  Employees filed a record 5,263 charges of discrimination last year.  That number is up from 5,077 filed in 2010. 

The most popular chargers were charges of retaliation, and race or sex discrimination.  Age discrimination charges were also up.

These numbers should come as no real surprise - the nationwide numbers show similar trends.  Nationally, the EEOC took in more charges last year than ever before. 

The EEOC claims the increase in the number of charges is a result of "more people becoming aware of their rights".  I doubt that is entirely accurate.  It is more likely that the numbers are up because the economy continues to languish.  When employees lose their jobs in a bad economy, they will consider all options.  And, one option is to bring claims against their former employer.  As long as the economy continues to sputter along, I expect that the EEOC (and labor and employment attorneys) will continue to be busy.


February 3 Webinar - Florida Employment Law: The Not-So Sunny Side

I am presenting a one-hour webinar this Friday afternoon.  See the link for the invite.  The webinar will include a good, basic overview of Florida employment law.  I hope you can attend!

Florida Employment Law Webinar -- February 3, 2012





Duane Morris Institute presents the webinar

Florida Employment Law: The Not-So Sunny Side

Friday, February 3, 2012 | 1:00 p.m. to 2:00 p.m. (Eastern Time)

Presented by
Richard D. Tuschman


This webinar is approved for CLE credit in the following states:
PA, NJ, NY, CA and FL
as well as 1.0 HRCI credit.

For information and to register, please click here.






Florida is a "right-to-work" state that is generally business-friendly. Yet businesses with employees in Florida frequently face litigation by current and former employees. Florida leads the nation in federal Fair Labor Standards Act (FLSA) lawsuits. In addition, state and local laws prohibit marital status discrimination, sexual orientation discrimination, and retaliation against whistleblowers. A basic understanding of these laws, as well as Florida's unemployment, workers' compensation and minimum-wage laws, is vital for businesses that employ workers in Florida. This webinar will cover the fundamentals of Florida employment law.







For more information on financial assistance, please contact
Deborah Margulies at or 215.979.1957.



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Michael W. Casey III, Kevin E. Vance, Mark J. Beutler, and Teresa M. Maestrelli practice labor and employment law, with a particular focus on labor and employment litigation, including Title VII, ADEA, ADA, Florida Civil Rights Act, and whistleblower claims, as well as non-compete litigation, in state and federal trial and appellate courts in Florida and throughout the United States. They also represent employers before the National Labor Relations Board (NLRB), the National Mediation Board (NMB), the U.S. Department of Labor, including the Wage and Hour Division and the Occupational Safety and Health Administration (OSHA), the Equal Employment Opportunity Commission (EEOC), and various state and local agencies, as well as in arbitrations, collective-bargaining negotiations and union representation elections. Hector A. Chichoni practices in the area of US and global immigration law. He chairs Duane Morris's Florida Immigration Practice. The editors of Chambers USA 2010 also selected Mr. Chichoni as a "Leader in the Immigration Field." He has represented a vast number of corporate and individual clients throughout his career ranging from premier US health care organizations, Fortune 100 and Fortune 500 companies, multinational corporations and universities to doctors, professors, researchers and students. His international experience includes handling matters relating to export controls and global corporate compliance and business transactions. He has represented clients in a wide variety of cases before the US Immigration Court.
© 2009- Duane Morris LLP. Duane Morris is a registered service mark of Duane Morris LLP.
The opinions expressed on this blog are those of the author and are not to be construed as legal advice.