Contrary to NLRB’s Position, Liberal Ninth Circuit Upholds Mandatory Arbitration Agreements

The Ninth Circuit recently upheld arbitration agreements with provisions requiring employees to waive their rights to bring class actions alleging overtime and other employment law violations. If you remember, the NLRB ruled in D.R. Horton, that such agreements violated the National Labor Relations Act, and despite the Fifth Circuit overturning the Board’s holding, the Board continues to rule consistent with its D.R. Horton decision. The Ninth Circuit, traditionally known to be very liberal, did not side with the NLRB when ruling on Nordstrom’s and Bloomingdale’s arbitration agreements.

Specific to Bloomingdale’s, the Court said, “By not opting out within the 30-day period, [the employee] became bound by the terms of the arbitration agreement. [She] was fully informed about the consequences of making that election, and she did so free of any express or implied threats of termination or retaliation if she decided to opt out of arbitration.”