In January 2012, the NLRB ruled that employers cannot condition employment on an employee's willingness to waive the right to bring class actions in arbitration. The case (D.R. Horton Inc. v. NLRB, No. 12-60031) is now pending before the 5th Circuit.

Earlier this week, employer groups Pacific Legal Foundation and the National Federation of Independent Business Small Business Legal Center weighed in, arguing that the NLRB's decision is contrary to federal statute and case law. Specifically, these grounds contend that the refusal by the NLRB to enforce the negotiated arbitration agreement contained in the governing contracts runs afoul of the Federal Arbitration Act and the U.S. Supreme Court's recent decision in AT&T Mobility LLC v. Concepion.