“Biggest Idiot” Meets Class Waivers

By John Alan Doran

The “biggest idiot theory” (our term, not the NLRB’s) states that, when the NLRB reviews an employer’s policy to see whether the policy would “chill” an employee from exercising NLRA rights, the NLRB does so from the perspective of the biggest idiot on the planet, not the mythical “reasonable employee.” (See NLRB Meets Gossip Girl) On Christmas Eve, a Grinchy NLRB took two swipes at otherwise lawful class action waivers. In Logisticare Solutions, Inc., the NLRB struck down an employer’s onboarding and handbook provisions requiring employees to waive their right to engage in class or collective actions. The Board found that the provision might be misread to prevent the filing of an unfair labor practice charge because (a) the heading above the waiver referred to “class/collective actions”, but not to “lawsuits”; and, (b) an employee (read “idiot”) might confuse the unmentioned “lawsuits” with unfair labor practice charges. What? Similarly, in 24 Hour Fitness USA, Inc. the Board struck down an employer’s arbitration agreement containing a class action waiver even though the agreement contained an unambiguous “opt-out” provision inviting employees to opt out of the company’s arbitration mechanism within 30 days of hire. The Board held that the opt-out provision did not save the class action waiver because employees were still forced to waive the right to engage in protected concerted activity. Seriously?

Lesson for today: To avoid the NLRB’s ire: (a) run all of your policies and employment agreements past the biggest idiot you can find; and (b) if the idiot unreasonably misreads a policy or agreement to deter protected concerted activities, go back to the drawing board. But don’t delay—there are very few idiots on the planet that can misread things as well as the NLRB!