The U.S. Department of Justice’s recent refusal to throw its weight behind National Labor Relations Board precedent in a U.S. Supreme Court battle over the legality of mandatory arbitration agreements with class waivers added new obstacles for the NLRB in defending the position — first expressed in its controversial D.R. Horton ruling — that such agreements violate federal labor law, experts say.

The DOJ’s rare about-face came in a brief it filed with the U.S. Supreme Court on Friday saying that agreements between employers and their workers to bilaterally arbitrate any employment-related claims have to be enforced under the Federal Arbitration Act and can’t be precluded by the National Labor Relations Act.

Steven Suflas, managing partner of Ballard Spahr LLP’s offices in Denver and Boulder, Colorado, said the DOJ’s shift “will carry some weight” with the justices — more so than would a typical amicus brief — and that the DOJ’s action could impact the NLRB’s defense of D.R. Horton in numerous other ways.

"There is both a practical and a symbolic result [from the DOJ’s position reversal]," Suflas said. "The symbolic result is the government telling the Supreme Court, ‘We’ve changed our mind.’ That is going to give more credence to the employer argument."

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