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NLRB decision upholds workers’ right to stand against unfair labor practices

January 3, 2012 -- Banning workers from taking class or collective action is an unfair labor practice, according to the National Labor Relations Board’s January 3 decision in the case of D.R. Horton. The Board held that an employer’s ban on class or collective actions in all forums violates the workers’ rights to engage in “concerted activities” for their mutual aid and protection, and that therefore such bans constitute unfair labor practices under the National Labor Relations Act. These bans have the purpose and effect of preventing workers, as a condition of their employment, from acting collectively to vindicate their workplace rights. The Board’s decision agrees with the amicus brief filed by workers’ rights advocates last year. The Public Justice Center had signed onto that brief. Both the brief and decision argued that the bans are an unfair labor practice and violate Section 7 and 8(a)(1) of the National Labor Relations Act of 1937 (NLRA). The NLRA protects all forms of concerted activity by employees – including class and collective actions – to improve wages or working conditions, and its coverage extends to most employees in the private sector, both union and non-union. The Board’s decision enables employees who are subject to arbitration agreements requiring them to completely waive their right to pursue their employment claims collectively to file unfair labor practice complaints and invalidate such waivers. This decision is particularly necessary and timely in light of recent a Supreme Court decision in AT&T Mobility v. Concepcion, which held that the Federal Arbitration Act (FAA) preempted a state law finding certain contractual class action bans to be unconscionable and unenforceable. 



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