Monthly Archives: May 2018

SUPREME COURT UPHOLDS USE OF CLASS ACTION WAIVERS

By:  Jenna K. Leslie

Yesterday, the Supreme Court of the United States issued a significant victory for employers when ruling that class and collective action waivers in employment arbitration agreements are fully enforceable under the Federal Arbitration Act (FAA) and do not violate an employee’s rights under the National Labor Relations Act (NLRA).

In Epic Systems Corp. v. Lewis (a companion case to National Labor Relations Board v. Murphy Oil USA and Ernst & Young LLP v. Morris), the high court issued a 5-4 decision upholding the validity of class action waivers in arbitration agreements.  Justice Neil Gorsuch, writing the majority opinion, explained that the FAA unequivocally requires federal courts to enforce arbitration agreements according to their terms, and nothing in the NLRA, which was enacted after the FAA, was intended to negate that requirement.  The opinion specifically found that Section 7 of the NLRA focuses on an employee’s right to organize and bargain collectively, but it does not create a right to pursue class or collective action lawsuits.

Writing for the dissent, Justice Ruth Bader Ginsburg called the majority opinion “egregiously wrong” and argued that the NLRA was intended to equalize the power imbalance in most employment relationships by allowing employees to band together through collective action to improve the terms and conditions of their employment.  The majority opinion rejected this notion, concluding that there is nothing in the NLRA that suggests a clear intention to displace the provisions of the FAA.

In recent years, employees have effectively used class and collective action procedures to bring massive wage and hour claims in both state and federal court.  This decision will curb those lawsuits and allow employers to rely on the enforceability of class and collective action waivers and arbitration provisions within their employment agreements.  Class and collective action waivers are useful tools used to preserve confidentiality, resolve claims more quickly, and limit potential exposure to collective action lawsuits.

This decision is said to affect at least 25 million existing employment agreements.  Employers should review their employment arbitration agreements carefully to determine which agreements are affected by this decision.  Employers should also consider whether it makes sense to implement such agreements prospectively, as the decision paves the way for employers to include class and collective action waivers in future employment agreements.

If you have questions about this material, please contact Jenna K. Leslie or  any other attorney you have been working with at Lindner & Marsack, S.C.

We look forward to seeing many of you tomorrow at our 2018 Annual Compliance/Best Practices seminar held at the Sheraton Hotel in Brookfield, Wisconsin.

LINDNER & MARSACK, S.C. WELCOMES DAVID KEATING TO TEAM

Lindner & Marsack, S.C. is pleased to announce the hire of Attorney David Keating.

Keating comes to Lindner& Marsack with significant experience advising clients in the long-term care industry. He served as Chief Legal Officer and Secretary for Fortis Management Group, LLC, where he provided legal advice and assistance on issues relating to resident care, regulatory compliance, reimbursement, fraud and abuse, human resources, labor relations, transactions and other areas affecting client operations. Prior to that, he held several positions over more than a decade with Extendicare Health Services, Inc., eventually serving as that organization’s Vice President and General Counsel.

“David has proven experience navigating complex legal challenges in an industry that is rapidly evolving and significant among Lindner & Marsack’s client portfolio, which will be a great asset to our clients in healthcare and beyond,” said Thomas Mackenzie, Firm President.

Keating is a member of the State Bar of Wisconsin, the American Bar Association and the Legal Committee of the American Health Care Association. He received his J.D. from the Widener University School of Law in Wilmington, Delaware, in 1995.  He also earned a Master of Labor and Industrial Relations from Michigan State University in 1992 and a Bachelor of Arts in Labor and Industrial Relations and Political Science from Pennsylvania State University in 1991.

“Lindner & Marsack’s long history and excellent reputation as a top-tier, management-side labor and employment law firm, along with the firm’s growth in the healthcare sector, make this a great fit,” says Keating. “As a member of the Lindner & Marsack team, I look forward to serving clients in a way that exceeds expectations and delivers proactive, legally-sound strategies and solutions.”