Sometimes Class Action Waivers with Opt-Out Programs are Lawful, Sometimes They’re Not

A National Labor Relations Board administrative law judge held that Bloomingdale’s did not violate federal labor law by maintaining an arbitration program that required employees to waive their rights to pursue class or collective actions because employees had a right to opt out of arbitration thus making the waiver voluntary.

Despite the NLRB’s argument that providing new hires an opportunity to opt out was not enough to show the waiver was voluntary, the ALJ ruled that the 30-day period for employees to decide whether they want to opt out was “not insubstantial or unjustifiable.”

Importantly, other ALJs have invalidated similar arbitration opt-out provisions, i.e. 24-Hour Fitness USA and Mastec Services Co. Previous ALJ decisions lack precedential authority unless and until reviewed and affirmed by the NLRB, though.

So as of now, it looks like companies with opt-out mandatory arbitration programs are at the whim of the randomly drawn ALJ as to whether their program is lawful.

Matt Austin is a Columbus, Ohio lawyer who owns Austin Legal, LLC, a boutique law firm with offices in central and northeast Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. Austin Legal’s Concierge Legal Services program is relied upon by companies to remain compliant and competitive. If you have employees, you need Concierge Legal Services. You can call Matt at (614) 285-5342 or email him at