For the past several years, management-side employment and labor law attorneys have felt relatively confident in advising employers that it was lawful to have class/collective action waivers in arbitration agreements with their employees. This belief was based, in large part, on two relevant, although not entirely on-point, U.S. Supreme Court decisions, as well as a number of subsequent district and circuit court decisions. However, a recent split within the Circuit Courts on this issue has placed that confidence in doubt. The Supreme Court granted certiorari in three such recent Circuit cases, consolidated those cases, and heard oral argument on them on Oct. 2, 2017. A decision, which should definitely resolve the issue of the enforceability of such waivers, is not expected until late Spring at the earliest.
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