In the first post-Epic Systems decision regarding arbitration agreements, the NLRB has underscored just how pro-arbitration courts and regulators have become. In Cordúa Restaurants, the Board put its stamp of approval on employers revising arbitration provisions even after employees file a claim. In doing so, employers can exercise more control as to how employees must bring their claims and—particularly, as in the case of Cordúa Restaurants, by limiting class and collective actions.
In Cordúa Restaurants, employees, as a condition of their employment, had to sign arbitration agreements waiving “their right to file, participate or proceed in class or collective actions.” Despite this agreement, some employees still filed collective wage and hour actions in federal court. Additional employees began “opting-in” to these collective actions.
In response, the employer revised its arbitration agreement so that employees waived their right to opt-in to a collective action. The agreement was revised to say “I agree that I cannot file or opt-in to a collective action under this Agreement, unless agreed upon by me and the Company in writing.” Employees had to sign this new arbitration agreement as a condition of employment.