The National Labor Relations Board has been a thorn in the Fifth Circuit’s said these past few years. Several days ago, however, the panel court made it perfectly clear that it hadn’t changed its mind with regards to the proper scope of the National Labor Standards Act.

The issue at bar (now apparently settled) is whether or not employers can require the signing of mandatory arbitration clauses that preclude employee lawsuits against the company. The answer? Such clauses are allowed.

The Court Has Spoken

In a 3-2 decision, the 5th Circuit ruled against NLRB. Instead, the Court was persuaded that the language of the Federal Arbitration Act essentially trumped the NLRB because it specifically urged the application of arbitration agreements “as written.”

Here We Go Again

Fast forward to Murphy Oil. Under facts substantially similar to Horton, the plaintiffs this time brought a collective FLSA action against the employer in court. When the Murphy Oil moved to dismiss, the court granted.

What This Means for Employers

What this means is that at least several circuit courts have all agreed that employers may require prospective employees to sign mandatory arbitration agreements without running afoul of the NLRA. It has also been observed that Circuit courts generally are reticent to directly contravene the findings of another Circuit so general counsel and other firm strategists can breathe a little easier.

No guarantees, however, that the NLRB won’t sue you anyway.

Related Resources:

  • Another NLRB Flip-Flop in the Works (National Law Review)
  • Race Abuse by Students Not Within Title VI’s Scope, 5th Cir. Rules (FindLaw’s Fifth Circuit)
  • Lawyer, Trustee Bills Estate for Vacation, Gets Removed for Cause (FindLaw’s Fifth Circtuit)
  • Fifth Circuit Adopts Narrow Reading of Bird Protection Law (FindLaw’s Fith Circuit)

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