NLRB Archives - Page 8 of 11

Firing Employees Who Don’t Get Flu Shots: What Risks Do Hospitals Face?

As hospitals continue to see an onslaught of flu patients, they also face challenges to flu vaccination policies designed to reduce the spread of flu to patients and fellow employees. Hospitals are understandably concerned with protecting patients, visitors and employees from contracting the flu and the potentially serious consequences to the health of elderly and infant patients. However, protecting patients against flu can create legal liability when employees are disciplined, discharged or suffer other adverse action because they do not get a flu shot.

Employment Considerations for Flu Vaccination Policies—The National Labor Relations Act

What limitations exist on a hospital’s ability to create and implement a flu/other vaccination policy? Under the National Labor Relations Act, a flu vaccination policy is a mandatory subject of bargaining. This means that unionized hospitals cannot unilaterally implement such a policy without first giving the union notice of the intended policy and bargain over the policy if the union requests to do so.

A hospital does not have to bargain if the union has “clearly and unmistakably” waived its right to bargain over the issue. A waiver is typically found in the “Management Rights” clause, which was the case in a recent National Labor Relations Board (NLRB; the Board) decision, Virginia Mason Medical Center, 358 NLRB No. 64 (2012), where the Board found a clear and unmistakable waiver in the Management Rights clause. That clause stated, in relevant part, that the Medical Center has the right to “operate and manage the Hospital, including but not limited to the right to require standards of performance and…to direct the nurses…to determine the materials and equipment to be used; to implement improved operational methods and procedures…to discipline, demote or discharge nurses for just cause…and to promulgate rules, regulations and personnel policies….”

The Union representing the Medical Center’s registered nurses filed an unfair labor practice charge with the Board and a hearing was held before an NLRB Administrative Law Judge (ALJ). The ALJ ruled, and the Board agreed, that the Management Rights clause did not specifically mention wearing facemasks (which the flu policy required in certain areas for non-immunized nurses), but it did “specifically allow the Hospital to unilaterally ‘direct the nurses’ and ‘determine the materials and equipment to be used’ [as well as] implement improved operational methods and procedure.’” The ALJ noted that the Hospital had several infection control policies that required nurses to wear masks under various circumstances, and found that requiring non-immunized nurses to wear masks was within the Hospital’s authority to “determine the materials and equipment to be used [and] implement improved operational methods and procedures.”

With properly crafted language in a Management Rights clause or elsewhere in a collective bargaining agreement, a unionized hospital has the right to unilaterally implement a new flu vaccination policy or modify an existing policy.

Employment Considerations for Flu Vaccination Policies—Disability and Religious Discrimination

Hospitals, of course, have reached different decisions on how to balance the interests of patients and employees. As such, policies vary in the flexibility given to employees regarding non-vaccination and the resulting consequences:

- Vaccination encouraged but not mandated
- Vaccination mandated with exemptions for medical contraindication, religious beliefs (discipline/other adverse consequences for non-exempted employees)
- Vaccination mandated and masking required for medical contraindication, religious beliefs (discipline/other adverse consequences for failure to be vaccinated or wear mask, as applicable)
- Vaccination required (discipline/other adverse consequences for non-compliance)

Flu vaccination policies also differ regarding applicability. Some policies apply only to employees who come into direct contact with patients. At the other end of the continuum, the policy applies to all employees, independent contractors, students, interns, vendors and others who provide services inside the hospital.

Union and non-union hospitals should consider the potential for discrimination claims based on a flu vaccination policy that requires any group of employees to get a flu shot or face adverse consequences (such as discharge) if they fail to do so for any reason. The Equal Employment Opportunity Commission (EEOC) would likely find such a policy to be unlawful. The EEOC has taken the position in its “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act” guidance that

“[a]n employee may be entitled to an exemption from a mandatory vaccination requirement based on an ADA disability that prevents him from taking the influenza vaccine. This would be a reasonable accommodation barring undue hardship (significant difficulty or expense). Similarly, under Title VII of the Civil Rights Act of 1964, once an employer receives notice that an employee’s sincerely held religious belief, practice, or observance prevents him from taking the influenza vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship as defined by Title VII (“more than de minimis cost” to the operation of the employer’s business, which is a lower standard than under the ADA).”

http://www.eeoc.gov/facts/pandemic_flu.html– 48k – 2009-10-21

A federal district court in Ohio refused to dismiss a complaint by a registered nurse alleging religious discrimination because she was fired for refusing to comply with the hospital’s mandatory flu vaccination policy. Chenzira v. Cincinnati Children’s Medical Center, S.D. Ohio, No. 1:11-cv-00917 (12/27/12). The employee’s refusal was based on her “religious beliefs” in veganism. The court rejected the hospital’s argument that her veganism was merely a “social philosophy or dietary preference.” According to the court, it was plausible the employee could show that she held her belief in veganism with the same sincerity as traditional religious beliefs. However, this case is far from over. The court noted that its ruling on the motion to dismiss “in no way addresses what it anticipates as the hospital’s justification for its termination of the employee — the safety of patients at Children’s Hospital.”

Not all refusals to get a flu shot are based on medical or religious reasons. A hospital in northern Indiana fired seven employees who refused to get flu shots. One oncology nurse who was fired said it was “a personal thing.” The nurse said she gets other vaccinations but it should be her choice whether she gets the flu vaccine. She said she opposes “the injustice of being forced to put something in [her] body.” Absent a violation of applicable state law, it is doubtful this employee would have a claim against the hospital for her termination.

Considerations in Creating a Flu Vaccination Policy

Current CDC guidelines do not require hospitals to mandate flu vaccination in any form; the CDC recommends active encouragement of employees to get a flu shot. However, some hospitals believe it is appropriate to do more to try to protect vulnerable patients from catching the flu in the hospital and then suffering severe health consequences. These hospitals mandate that at least some groups of employees must be vaccinated. ”

Terminating or taking other adverse action against an employee who cannot get the vaccine because of a disability (as defined in the Americans with Disabilities Act and/or applicable state law) exposes a hospital to meaningful risk of a discrimination lawsuit. The same is true for employees who raise a “religious objection.”

Hospitals should evaluate such refusals on a case-by-case basis and explore possible reasonable accommodations of the employees’ refusal to get vaccinated, and the policy should so inform employees. Possible reasonable accommodations could be exempting the employee from the policy entirely, transferring the employee to another position temporarily (until the flu threat ends as determined by local health officials) or permitting the employee to wear a mask when in proximity to patients and coworkers. From my perspective as a former hospital board chairman, this approach presents a balancing of the hospital’s interest in protecting patients from flu exposure while protecting the legal rights of certain employees who decline to get vaccinated. In the final analysis, many hospitals believe that risk of harm to patients may trump an individual’s right to refuse when flu epidemics are declared.

Editor’s Note: See our coverage on this topic for non-health care employers here.

The Dos and Don’ts of Implementing a Mandatory Flu Shot Vaccine Policy

As another flu season approaches and the lines are forming for annual flu shots, many employers are questioning the legality of requiring their employees to receive a flu vaccine shot when they recognize business and safety needs for ensuring their work environments and workforce are better protected from the flu virus. This need is especially acute for non-hospital employers who care for individuals with compromised immune systems, such as rehabilitation centers or schools. While a different set of considerations come into play when a hospital is assessing how to implement a flu vaccine policy (see our post on this topic by Mark Nelson here), non-hospital employers have business needs and health concerns that may make implementation of a flu vaccine policy desirable or necessary.

So, what should an employer consider before implementing such a policy?

DO evaluate the business need for the policy. Whether it be concern for patients, clients, or customers or, rather, a need to ensure that your workforce is less likely to be on leave due to a flu outbreak, an employer must be prepared to identify its reasonable business interest if the policy is challenged.
DO consider what type of policy suits business needs. Some employers are implementing mandatory policies for all employees to receive a flu shot. Others are only requiring that certain categories of employees receive a flu shot, i.e., those with regular access to patients or individuals with compromised immune systems. Still others are implementing a policy that “strongly encourages” flu vaccinations.
DO review any applicable Collective Bargaining Agreements. Under the National Labor Relations Act, a flu vaccination policy is a mandatory subject of bargaining. This means that a unionized employer cannot unilaterally implement such a policy without giving the union notice of the policy and bargain over the policy if the union requests. However, as set forth under recent National Labor Relations Board caselaw, a union may waive a right to bargain over such a policy by way of a Management Rights Clause. See Virginia Mason Medical Center, 358 NLRB No. 64 (2012). If unionized, employers should evaluate the breadth of their clause to see if the union has waived the right to bargain regarding the employer’s right to direct employees, to determine materials and equipment to be used and/or to implement improved operational methods and procedures. In the Virginia Mason case, the NLRB specifically recognized this type of waiver language as permitting the Medical Center to require non-immunized nurses to wear facemasks.
DON’T refuse to engage in an interactive process with any objecting employees. Employers should be prepared to work with an employee’s health or religious objections to receiving a flu shot. The Equal Employment Opportunity Commission (EEOC) has taken the position that employees may be exempt from a mandatory vaccination requirement based on an ADA disability or a “sincerely held religious belief, practice, or observance.” See www.eeoc.gov/facts/pandemic_flu.html -48k-2009-10-21. Further, the EEOC has issued an informal guidance letter on health care workers’ requests from employer-mandated vaccinations under Title VII, opining that Title VII defines religion very broadly and that an “employee’s belief or practice can be ‘religious’ under Title VII even if the employee is affiliated with a religious group that does not espouse or recognize that individual’s belief or practice, or if few – or no – other people adhere to it. See http://www.eeoc.gov/eeoc/foia/letters/2012/religious_accommodation.html. Courts have recognized that such “sincerely held” beliefs may include lifestyle choices such as veganism. See Chenzira v. Cincinnati Children’s Medical Center, No. 11-917, 2012 WL 6721098 (S.D. Ohio December 27, 2012). In such instances where an employee expresses a health or religious-based objection to a mandatory flu vaccine policy, the employer should discuss reasonable accommodations with the employee, e.g., exempting the employee from the policy entirely, transferring the employee to another position temporarily (until the flu threat ends as determined by local health officials) or permitting the employee to wear a facemask when in proximity to patients and coworkers.
DON’T terminate any employee who refuses a flu shot without engaging in the interactive process if they are objecting for health or religious reasons. Further, any disciplinary measures should be uniformly implemented in the case of employees in violation of the policy. Employers may also want to consider progressive discipline for first-time offenders, e.g., issuing a warning letter for an initial failure to show proof of a flu shot or failure to wear a facemask.
DO ensure that any policy implemented is enforced uniformly. Require proof that employees have received a flu shot. In the case of objectors, seek a waiver that the employee is unable or objects to vaccination and then engage in the interactive process to agree upon a reasonable accommodation.
DO consider making flu shots available to employees on-site to maximize compliance with any flu shot policy.
DON’T implement a policy without contacting your state’s Department of Health or any other related agencies. These agencies can provide guidance on the manner in which vaccine policies should be implemented for various categories of employers or regarding possible accommodations for objecting employees.

New Jersey Federal Court Finds that the Stored Communications Act Protects Employee’s Non-Public Facebook Wall Posts – But Also Provides Guidance on Whether An Employer Can Take Action Based on The Unsolicited Receipt of An Offensive Post

Facebook continues to be the new “water-cooler” as co-workers regularly “friend” each other and allow access to their “wall” posts. New Jersey’s Federal District Court recently addressed the issue of whether a Hospital’s decision to suspend a nurse based on a post on her Facebook wall – which it received unsolicited from a co-worker who was a Facebook friend of the nurse – violated the Federal Stored Communications Act (“SCA”), 18 U.S.C. § 2701-11. The Court also addressed the nurse’s related invasion of privacy claim. Ehling v. Monmouth-Ocean Hospital Service Corp., 2013 U.S. Dist. LEXIS 117689 (8/20/13). [Opinion]

The nurse was a Hospital employee who maintained a personal Facebook account. She chose privacy settings that limited access to her “wall” to her Facebook ‘friends,” including one of her co-workers. Following the 2009 shooting at the Holocaust museum, the nurse posted the following to her wall:

An 88 yr old sociopath white supremacist opened fire in the Wash D.C. Holocaust Museum this morning and killed an innocent guard (leaving children). Other guards opened fire. The 88 yr old was shot. He survived. I blame the DC paramedics. I want to say 2 things to the DC medics. 1. WHAT WERE YOU THINKING and 2. This was your opportunity to really make a difference! WTF!!!! And to the other guards….go to target practice.”

Her co-worker took a screen shot of the post, and then showed the post to the nurse’s supervisor. As a result, the Hospital temporarily suspended the nurse, with pay, due to the concern that her comment reflected a “deliberate disregard for patient safety.”

The nurse sued claiming that the Hospital’s reliance on her Facebook post violated the Federal Stored Communications Act – and was an invasion of privacy. The Court first addressed the issue of whether the SCA applied to Facebook wall posts since the SCA was enacted in 1986, before the WorldWideWeb was developed in 1990 and web browsers were introduced in 1999.

The Court did determine that the SCA applied to Facebook posts based on the following analysis: (1) Facebook wall posts are electronic communications as defined by the SCA; (2) Facebook is an electronic communication service provider as defined within the SCA; (3) Facebook wall posts satisfy the “in electronic storage” requirement as they are not held in temporary, intermediate storage before delivery to the website, and are in accessible storage for back-up purposes; and (4) given that the touchstone of the SCA is to protect information that the communicator took steps to keep private, if a Facebook user chose privacy settings that limited access to her “friends,” the post at issue was covered by the SCA. The Court relied on California precedent in reaching this determination. Interestingly, the Court also found that the privacy protection provided by the SCA is not dependent on the number of Facebook friends to whom the user provides access.

However, the Court still granted summary judgment to the Hospital because it determined that the “authorized user” exception applied because the nurse granted her co-worker access to the post by “friending” her and thereby “intending” that her co-worker would view her posts. The Court also rejected the claim that the “authorization was coerced because the supervisor had never asked the co-worker for any information about the nurse, or the nurse’s Facebook activity. The Court also noted that the nurse’s supervisor was not in a position to offer the co-worker any benefit in exchange for the unsolicited presentation of the Facebook post since supervisor worked in a different division and had no control over the co-worker’s compensation.

The Court also dismissed the nurse’s common law invasion of privacy finding that:

“The evidence does not show that Defendants obtained access to Plaintiff’s Facebook page by, say, logging into her account, logging into another employee’s account, or asking another employee to log into Facebook. Instead, the evidence shows that Defendants were the passive recipients of information that they did not seek out or ask for. Plaintiff voluntarily gave information to her Facebook friend, and her Facebook friend voluntarily gave that information to someone else.”

Notably, the nurse also filed a complaint with the NLRB, however the NLRB determined that the Hospital did not violate the NLRA, and that there was no privacy violation because the post was sent, unsolicited, to Hospital management.

What is the take-away from this decision? First, employers have been waiting since the 2009 jury verdict in Pietrylo v. Hillstone Restaurant Group for guidance about what circumstances would qualify as “authorization” under the federal and NJ stored communications statutes. Second, employers should continue to use extreme caution taking adverse action based on employees’ social media activities. This decision, as well as recently enacted state legislation, clearly prohibits employers from directly – or indirectly – demanding access to employees’ social media accounts. As of July, 2013, legislation has been proposed in over 30 states to prevent employers from requesting passwords, and a number of states have enacted such legislation, including California, Illinois, Maryland and Michigan. Facebook has also condemned the practice and has updated its Statement of Rights and Responsibilities to address this issue.

In addition to potential liability under the SCA, the NLRB has been very active with regards to finding that Facebook rants about bosses, work conditions or compensation fall within the realm of protected “concerted activity” under the NLRA. However, even the NLRB has recognized that employers have a legitimate basis to take action in response to negative postings about their customers/clientele. The Office of the General Counsel found no violation for Facebook firings of a bartender who labeled customers as “rednecks” and hoped that they choked on glass, and of an employee of a residential facility for homeless people with significant mental health issues who joked about the condition of the facilities’ clients.

Sixth Circuit Approves NLRB Micro-Bargaining Units

On August 15, 2013, the Sixth Circuit Court of Appeals affirmed the National Labor Relations Board’s (NLRB or the Board) controversial ruling in Specialty Healthcare, 357 NLRB No. 83 (2011), which has allowed the proliferation of what some term “micro-bargaining units.” This decision makes it easier for unions to organize employees from all industries into smaller units than in the past and makes it challenging for employers to successfully challenge smaller bargaining units.

The Board’s Specialty Healthcare decision overruled its decision in Park Manor Care Center, 305 NLRB 135 (1991), which set forth the Board’s previous test for determining the appropriateness of a bargaining unit in non-acute healthcare facilities. Park Manor Care established a “pragmatic and empirical community of interest” approach that considered traditional community-of-interest factors, as well as evidence considered relevant by the Board during rulemaking concerning acute-care hospitals and the Board’s prior experience involving the types of facilities in dispute or units sought. In Specialty Healthcare, the Board ruled that an employer claiming that the proposed bargaining unit should include additional employees must be able to show that the excluded employees share an “overwhelming community of interest” with the employees in the proposed bargaining unit. Under Specialty Healthcare, numerous decisions have found small units appropriate that would not have been approved under previous Board law.

In Kindred Nursing Ctrs. E., LLC v. NLRB, Case No. 12-1027 (6th Cir. Aug. 15, 2013), the successor in interest to Specialty Healthcare’s facility in Mobile, Alabama challenged the Board’s ruling that a bargaining unit of Certified Nursing Assistants “constituted an appropriate unit.” Pursuant to Specialty Healthcare, the Board had found a unit of fifty-three CNAs to be an appropriate bargaining unit, while Kindred Nursing argued that the bargaining units should have included an “additional eighty-six non-supervisory, non-professional service and maintenance employees.” In its attack on the Specialty Healthcare decision, Kindred Nursing argued that the Board had abused its discretion because it

“adopt[ed] a new approach and [did] not return to applying the traditional community-of-interest approach; (2) [did] not ‘reiterate and clarify’ the law by adopting the overwhelming-community-of-interest test, but inappropriately imports this test from another area of labor law; (3) violat[ed] section 9(c)(5) of the National Labor Relations Act in its application of the traditional community of interest test and adoption of the overwhelming-community-of-interest test; and (4) [made] all of these changes through adjudication instead of rulemaking.”

In rejecting Kindred Nursing’s arguments, the Sixth Circuit first stated that it must uphold both the Board’s bargaining unit determination and its interpretation of the National Labor Relations Act (“NLRA”) unless the Board had abused its discretion. The Court noted that in exercising its discretion, the “Board must cogently explain why it has exercised its discretion in a given manner.” Citing oft-quoted precedent that the Board must select an appropriate unit and is not required to select the most appropriate unit, as well as the principle that the Board has the discretion to develop standards for determining the appropriateness of a bargaining unit, the Sixth Circuit found that it was in the Board’s discretion to overrule its own precedent and adopt a test based on prior Board precedent – even if it represented a material change in the law. Furthermore, the Court found that the Board had not departed substantially from prior law as it had previously relied upon the overwhelming-community-of-interest test in prior cases, and that it had explained its reasons for adopting its new standard. The Court noted that the Board’s new test had been approved by the District of Columbia Circuit prior to the Board’s holding in Specialty Heatlhcare. See Blue Man Vegas, LLC v. NLRB, 529 F.3d 417 (D.C. Cir. 2008).

The Court also rejected Kindred Nursing’s arguments that the Board improperly changed its bargaining unit standards by adjudication rather than by rulemaking, and that Specialty Healthcare violated Section 9(c)(5) of the NLRA. The Court first noted that the Supreme Court had specifically held in NLRB v. Bell Aerospace Co., 416 U.S. 267 (1974), that the Board is not precluded from choosing adjudication as a method of developing new standards. As for Kindred Nursing’s Section 9(c)(5) argument, the Court held the Board’s decision did not violate this Section 9(c)(5) because it does not assume that a requested bargaining unit is per se appropriate; rather, Specialty Healthcare requires an employer to make the showing of an overwhelming community of interest only after the proposed bargaining unit is deemed appropriate.[1]

In light of the approval of the District of Columbia and Sixth Circuits, it is likely that Specialty Healthcare’s “overwhelming-community-of-interest” test will be the rule unless or until the make-up of the Board changes sufficiently, which is unlikely during the remainder of President Obama’s second term, or it is reversed by the U.S. Supreme Court. Moreover, it has been applied in industries beyond non-acute healthcare facilities. With the increased risk of targeted organizing campaigns aimed at small units of sympathetic employees, the need for employers in all industries to proactively consider union avoidance strategies has never been more important.

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[1] The Supreme Court has interpreted section 9(c)(5) to prohibit the Board from approving bargaining units “based solely upon the extent of organization.” NLRB v. Metro. Life Ins. Co., 380 U.S. 438, 441-442 (1965).

The New National Labor Relations Board: Will It Be More of the Same — Or Worse?

For the first time in more than ten years, the National Labor Relations Board will have five Senate-confirmed board members and no battles over recess appointments. However, the new Board will continue to be dominated by pro-union members selected by President Obama. The three Democratic members are: current Chairman Mark Pearce; Nancy Schiffer, associate general counsel for AFL-CIO; and Kent Hirozawa, chief counsel to Pearce. The two Republican members are seasoned management-side labor lawyers Philip Miscimarra and Harry Johnson III.

The confirmation of these Board members ends, at least moving forward, the uncertainty caused by the President’s recess appointments which were ruled invalid by the U.S. Court of Appeals for the D.C. Circuit. For employers, this new Board is not likely to behave much differently than the Board has since the President was elected. In fact, employers can expect this Board to continue to issue decisions that favor unions and employees. In addition, the Board may well exercise its rulemaking power with greater vigor than before.

Here is what employers may see from this new Board:

1. The Resurrection of the “Quickie/Ambush” Election Rule

In December 2011, the Board adopted a final rule that made numerous and substantial changes in how union election would be handled. The rule was not implemented because a federal court decided that the Board’s vote to adopt the rule was improper. Significantly, the court did not object to the substance of the rule and its changes. The new Board could reconsider the rule and take another vote and employers can expect the 3-2 Democratic majority to approve it. It is also conceivable that this Board could propose a rule that calls for additional changes to the election procedures that would assist unions in winning elections, such as making voting by mail the preferred method of casting ballots; Chairman Pearce has previously indicated his interest in taking a fresh look at the rule.

2. Take a Hard Look at Bush-Era Board Decisions

As the Board composition changes with each change in the Presidency, it is common for Boards to re-examine decisions issued under a prior Administration of the other political party. The Board under George W. Bush was accused of wholesale reversal of rulings under the Clinton Administration. This new Obama Board can be expected to continue its reversal of Bush-era Board decisions. By way of example:

Many have expected the Board to overrule a 2007 decision in Register-Guard, in which the Bush-era Board held that an employer can maintain a policy that prohibits employees from using its email system for non-job related solicitation including union organizing. Current Board law gives unionized employees the right to a union representative at an investigatory interview the employee reasonably believes may lead to discipline. During the Clinton administration, the Board extended this right to representation to non-union employees. That extension was reversed by the Board during the Bush administration, by a 3-2 vote. It would not be a surprise for the new Obama Board to extend representation rights to non-union employees again.

3. Continued Focus on Non-Union Employers’ Policies

Under the Obama administration, the Board has aggressively focused on policies and practices of employers who have no unionized employees. The Board has examined at-will statements, social media policies, confidentiality clauses, dress code policies, premises access policies and disciplinary action based on these policies and practices. Employers should expect the Board to continue its examination of any policy or practice that could interfere with employees’ ability to engage in union organizing or other activity protected by the National Labor Relations Act.

4. Micro Bargaining Units

In August 2011, the Board ruled in Specialty Healthcare that the Board will approve the bargaining unit requested by a union unless the employer can prove the unit improperly excludes employees who share “an overwhelming community of interest” with the employees in the proposed unit. Under Specialty Healthcare, the Board has issued numerous decisions finding that small units are appropriate; those units would not have been approved before Specialty Healthcare became law. Employers can expect the Board to continue to abide by its decision and can hope the Board will provide greater guidance and clarity on how this new standard will be used.

Will the new Board be the same as the old Board? Time will tell. It is unlikely the new Board will be more employer-friendly and it is distinctly possible it will be even more aggressive in issuing decisions and rules to enhance unions’ ability to organize employees.

NLRB Rules That Policy Requiring Employees to Individually Arbitrate Employment Disputes Violates the National Labor Relations Act

On June 3, 2013 an National Labor Relations Board (NLRB) Administrative Law Judge (ALJ) reached a decision in which it found that MasTec Services’ Company’s policy that required employees to individually arbitrate employment disputes violated Section 8(a)(1) of the National Labor Relations Act (NLRA). In so holding, the ALJ radically expanded the NLRB’s previous decision in D. R. Horton, Inc. (1/3/12). As D.R. Horton itself has been rejected by almost all federal courts which have considered it, the MasTec decision is bound to create a firestorm of criticism.

In D.R. Horton, the NLRB ruled that requiring employees to sign a blanket waiver of rights to pursue their employment claims through class actions violated Section 8(a)(1) of the NLRA. The specific agreement at issue in D.R. Horton (1) contained a mandatory arbitration provision, and (2) required employees to bring all employment-related claims to an arbitrator on an individual basis, as opposed to as a potential class action. The D.R. Horton decision generated significant criticism, and many commentators noted that it appeared to conflict with U.S. Supreme Court precedent, specifically AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011). Concepcion held that the Federal Arbitration Act preempts state laws that prohibit contracts from disallowing class-wide arbitration, and that companies can enforce contract provisions that require customers to arbitrate their disputes individually. Concepcion, which involved a consumer contract, was thought to make it much harder for individuals – not only consumers, but also employees who had signed arbitration agreements – to file class action lawsuits.

Although D.R. Horton initially caused great concern among employers, as it seemed to eliminate the possibility of preventing class suits through mandatory arbitration agreements, this concern has been tempered by the fact that an overwhelming number of federal courts that have considered the issue have refused to follow the decision, including the Eighth Circuit Court of Appeals. See e.g., Owen v. Bristol Care, Inc., 702 F.3d 1050 (8th Cir. 2013); Delock v. Securitas Security Servs. USA, Inc., 883 F. Supp. 2d 784 (E.D. Ark. 2012); Morvant v P F Chang’s China Bistro Inc., 2012 WL 1604851 (N.D. Cal. 2012); De Oliveira v. Citicorp North America, Inc. (M.D. Fla. 2012); Tenet Healthsystem Philadelphia, Inc. v. Rooney (E.D. Pa. 2012); Lavoice v. UBS Wealth Management Americas (S.D.N.Y. 2011); Johnmohammadi v. Bloomingdales, Inc. (C.D. Cal. 2012); Sanders v. Swift Transp. Co. of Ariz., 843 F Supp. 2d 1033, (N.D. Cal. 2012); Palmer v. Convergys Corp., 2012 WL 425256 (M.D. Ga. 2012).

MasTec is sure to be controversial because, despite the courts’ hostile reaction to D.R. Horton, MasTec expands its holding. The arbitration provision at issue in MasTech was less restrictive than that in D.R. Horton, in that it (1) permitted the employee to opt out within 30 days, and (2) explicitly authorized employees to bring claims to administrative agencies. Nonetheless, even with these safeguards in place, the ALJ found the provision to violate Section 8(a)(1). The ALJ gave three independent reasons for reaching this conclusion. First, given that the NLRA grants employees the right to engage in protected concerted activities without interference, an employer may not require its employees to affirmatively act (through the opt-out) in order to obtain or maintain those rights. Second, employees who opt out still would be unable to engage in and cooperate in concerted activities with those who did not opt out, disadvantaging them in their attempts at concerted action. Third, some employees may be reluctant to exercise the opt-out option for fear of angering their employers. Under the reasoning of the Mas Tec opinion, it would be virtually impossible for any employer to include a class action waiver in arbitration agreements with individual employees.

D.R. Horton itself is currently on appeal before the U.S. Court of Appeals for the Fifth Circuit. Should the NLRB and Federal Court decisions continue to diverge, the stage may be set for a reversal of D.R. Horton (or perhaps a Supreme Court decision). We will continue to monitor D.R. Horton and its progeny, given the case’s broad implications for employers potentially subject to employee class actions.