The U.S. Chamber filed an amicus brief urging the U.S. Supreme Court to review the question whether individual arbitration agreements protected by the Federal Arbitration Act (“FAA”) are, nonetheless, prohibited in the employment context under the National Labor Relations Act (“NLRA”). Adoption of the anti-arbitration view by a few courts—a view first embodied in the National Labor Relations Board's (“NLRB”) D.R. Horton decision—has produced an untenable split among the lower courts and is of broad national importance, implicating employment contracts involving millions of employees.
The issue is now presented in multiple certiorari petitions before the Court. The Chamber urged the Court, regardless of whether it grants the NLRB’s petition, to grant employers’ petitions to get a full airing of the issues. The Chamber also explained three distinct issues that the Court must address to fully resolve the conflict among the lower courts:
(1) Does the NLRA contain a “contrary congressional command” overriding the FAA?
(2) Does enforcing the arbitration agreement waive a right to pursue statutory remedies under the NLRA?
(3) Is the D.R. Horton rule a basis “at the law or in equity for the revocation of any contract”?
This case is part of a series of cases in which parties, including the NLRB as a party or amicus, continue to press the NLRB’s position, first announced in the D.R. Horton matter, that agreements between employers and employees to arbitrate disputes on an individual basis violate the NLRA.
Andrew J. Pincus, Evan M. Tager, Archis A. Parasharami and Matthew A. Waring of Mayer Brown LLP served as counsel for the U.S. Chamber of Commerce on behalf of the U.S. Chamber Litigation Center.