About-Face: DOJ Reverses Position on Class Action Waivers

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About-Face: DOJ Reverses Position on Class Action Waivers

 By: Michael Saqui and Jason Yang

As we reported here and here, the Supreme Court is currently reviewing three consolidated cases in order to resolve a split among the circuit courts regarding the legality of class action waivers in employment contracts under the National Labor Relations Act (“NLRA”).  Under the Obama Administration, the DOJ had defended the National Labor Relations Board’s position that class action waivers violated the NLRA. However, in a move widely expected following President Trump’s election win, the Department of Justice (“DOJ”) recently reversed its position, arguing in an amicus brief filed with the Supreme Court that class action waivers do not violate the NLRA and asking the Supreme Court to uphold the use of class action waivers.

In its amicus brief, the DOJ acknowledged the 180 degree turn in its position and explained that “after the change in administration, the office reconsidered the issue and has reached the opposite conclusion.”  While the DOJ’s change of heart does not guarantee the Supreme Court will agree with the DOJ, a favorable decision appears more and more likely, especially with the recent appointment of Neil Gorsuch to the Supreme Court.


A decision on the enforceability of arbitration agreements is not expected until at least October.   However, employers should be encouraged by the DOJ’s shift in positions on class action waivers.  The DOJ’s change not only bodes well for the enforceability of class action waivers, but also sends a strong signal of the Trump administration’s willingness to roll back Obama-era regulations and positions.  If you have any questions regarding employment agreements, please contact the experts at The Saqui Law Group.


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