By: Matt Selmasska, ALR Comments Editor, 2017-2018

The Supreme Court will hear oral arguments in National Labor Relations Board v. Murphy Oil USA, Inc. this fall. The justices will decide whether class action waivers of employment disputes are enforceable, pursuant to the National Labor Relations Act (“NLRA”) and the Federal Arbitration Act (“FAA”). In September of 2016, President Obama’s Solicitor General’s Office filed a petition for review following a decision in the case from the United States Court of Appeals for the Fifth Circuit.

The Fifth Circuit held that Murphy Oil USA, Inc. “did not commit unfair labor practices by requiring employees to sign its arbitration agreement or seeking to enforce that agreement in federal district court.”[1] The initial petition for review argued that the Fifth Circuit erred by failing to honor the NLRA’s allowance for employees to bring collective proceedings against their employers.

Then President Trump won the election, and his Solicitor General’s Office now asks the Court to affirm the decision of the Fifth Circuit, citing the congressional policy of enforcing arbitration agreements as enshrined in the FAA.

Though one might expect this change of course with a newly inaugurated Republican administration, such a reversal is uncommon. Amy Howe at SCOTUSblog writes, “[i]t is rare for the Office of the Solicitor General to change its position in a case before the Supreme Court after a change in administrations, even when the party in control of the White House changes.”[2]

The drama is set to unfold before the Court on Monday, October 2, 2017.

[1] See Murphy Oil USA, Inc. v. N.L.R.B., 808 F.3d 1013, 1015 (5th Cir. 2015).

[2] Amy Howe, Murphy Oil’s law: Solicitor General’s office reverses course in arbitration cases, supports employers, SCOTUSblog (June 19, 2017, 7:12 AM), http://www.scotusblog.com/2017/06/murphy-oils-law-solicitor-generals-office-reverses-course-arbitration-cases-supports-employers/.