Fifth Circuit Denies NLRB Petition to Rehear D.R. Horton

On April 16, 2014, the Fifth Circuit Court of Appeals denied the National Labor Relations Board’s (the “Board” or “NLRB”) petition for rehearing en banc in D.R. Horton, Inc. v. NLRB, thus upholding its December 3, 2013 decision that arbitration agreements prohibiting class or collective actions claims do not violate the National Labor Relations Act (“NLRA”). A discussion of the Fifth Circuit’s December 3, 2013 decision can be found here.

The NLRB filed a petition for rehearing by the panel or en banc on March 13, 2014. Therein, the NLRB argued that the appellate panel erroneously relied on Gilmer v. Intertate/Johnson Lane Corp., 500 U.S. 20 (1991) and AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011) when it decided D.R. Horton. In a one-paragraph opinion, a three-judge panel of the Fifth Circuit rejected the Board’s argument. We will follow up if the NLRB asks the United State Supreme Court to review the matter.

For questions regarding the court’s ruling and class action waivers generally, please feel free to contact an attorney in the Gibbons Employment & Labor Law Department.