In May in its Epic Systems decision, the U.S. Supreme Court upheld the ability of employers to compel individual mandatory arbitration of employment disputes as an alternative to class or collective action litigation. Subsequent to this decision, the Eleventh Circuit Court of Appeals agreed to remand to the National Labor Relations Board related issues involving alleged conflicts between the NLRA and mandatory arbitration agreements.
 
In Cowabunga, Inc. v. NLRB, a pizza delivery driver filed a collective action FLSA lawsuit against his employer, alleging minimum wage violations. The employer moved to compel mandatory arbitration of the claim on an individual basis under its arbitration agreement with the employee. Before the court granted this motion, the plaintiff also filed an unfair labor practice charge with the NLRB, claiming (1) that bans on class or collective action claims violate the NLRA and (2) that the arbitration agreement made employees believe they were unable to file administrative claims with the agency.
 
After the Epic Systems decision closed the door on the first claim, the NLRB filed a motion with the court to remand the second question to the board for further consideration. The Eleventh Circuit agreed, citing the NLRB’s recent Boeing decision. In this case, the NLRB changed its standard for review of employer policies, declaring them in violation of the NLRA only in situations where the policy is deemed reasonably intended or likely to violate employee rights. If the NLRB follows Boeing after remand, it would close the door on remaining attempts by employees to use the NLRA to challenge employers’ ability to use mandatory arbitration to avoid court litigation.