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11th Circuit Delivers Victory to Pizza Employer in NLRB Matter


In a victory for Domino’s Pizza franchisee Cowabunga Inc., the 11th Circuit Court of Appeals denied enforcement of a National Labor Relations Board order finding that the company violated federal law by maintaining and enforcing an employment agreement prohibiting workers from pursuing class and collective action claims in court and causing employees to reasonably believe they were prohibited from filing unfair labor practice charges.

Steven Bernstein and Reyburn Lominack successfully represented the franchisee in the case of Cowabunga Inc. v. National Labor Relations Board. Oral arguments were held in February 2017.

Relying on the U.S. Supreme Court’s recent decision in Epic Systems Corp. v. Lewis, the 11th Circuit concluded that Cowabunga’s employment agreement containing a class and collective action waiver did not violate the National Labor Relations Act because such agreements must be enforced as written pursuant to the Federal Arbitration Act. The Court further concluded that the issue of whether Cowabunga’s employment agreement would reasonably lead employees to believe they could not file unfair labor practice charges should be remanded in light of the Board’s new standard for evaluating the lawfulness of facially neutral policies.

The 11th Circuit’s decision is a positive development for employers seeking to maintain and enforce broad arbitration agreements with class and collective action waivers.

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