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NLRB Invites Briefs on Mandatory Employment Arbitration Clauses Including Those with Savings and Confidentiality Provisions
Practical Law Legal Update w-034-1608 (Approx. 5 pages)
NLRB Invites Briefs on Mandatory Employment Arbitration Clauses Including Those with Savings and Confidentiality Provisions
by Practical Law Labor & Employment
| Published on 20 Jan 2022 • USA (National/Federal) |
In Ralphs Grocery Co., the National Labor Relations Board (NLRB) invited the submission of briefs on its standard of review for employment arbitration clauses including those with savings clauses and confidentiality provisions.
On January 18, 2022, in Ralphs Grocery Co., the panel (Board) heading the NLRB's judicial functions issued a notice and invitation to the parties and interested amici to submit briefs regarding whether the Board should adopt a new legal standard for reviewing mandatory employment arbitration agreements, savings clauses in those agreements informing employees that the agreements do not restrict their exercise of NLRA rights, and confidentiality provisions in those agreements. Specifically, the Board requested input on the following questions:
- Should the Board abrogate Anderson Enterprises, Inc., where it overruled its earlier decision in the present case (369 N.L.R.B. No. 70 (May 8, 2020); Legal Update, NLRB Approves of ADR Policy Savings Clause, Overrules Precedent Holding Similar Policies Unlawfully Suggested Filing NLRB Charges Was Futile)?
- Does the arbitration policy in the present case interfere with employees' right to file Board charges or otherwise access the Board's processes?
- Did the Board correctly hold in California Commerce Club, Inc. that the Federal Arbitration Act (FAA) privileges employers' maintenance of confidentiality requirements in arbitration agreements that would otherwise violate Section 8(a)(1) by interfering with employees' exercise of their Section 7 rights (369 N.L.R.B. No. 106 (June 19, 2020); see also Legal Updates, Arbitration Agreement Mandating Confidentiality of Proceedings Is Lawful Under the NLRA: NLRB and Mandatory Agreement Requiring Employees to Arbitrate All Claims Against Employer and Hold Confidential Any Settlement Terms is Unlawful: NLRB)?
- If, contrary to California Commerce Club, Inc., the FAA does not prevent the Board from reviewing arbitration confidentiality requirements under the NLRA, what standard should the Board apply to determine the lawfulness of these requirements?
Members Kaplan and Ring dissented.
Through the NLRB's e-filing portal:
- Initial briefs by the parties or amici must be submitted by March 21, 2022.
- Responsive briefs by the parties must be submitted by April 4, 2022.