In Prime Healthcare Paradise Valley, LLC,2 the Board clarified that the Supreme Court’s decision in Epic Systems does not give employers carte blanche to resolve all workplace disputes through arbitration. Reiterating the importance of section 7 rights to use the NLRB’s processes, the Board held that the NLRA prohibits agreements that restrict employees’ access to the Board or its processes.

Arbitration agreements may require proceedings and awards be kept confidential (because of the expansive scope of the Federal Arbitration Act (FAA)),3 but they cannot require that arbitration settlements be kept confidential (because settlements are not protected by the FAA and do implication section 7 rights under the NLRA).4

On the other hand, a broad arbitration clause with a properly-worded “savings clause,” which expressly carves out an exception from arbitration for NLRB claims, is lawful.5

In another post- Epic Systems decision, Cordúa Restaurants, Inc.,6 the Board, interpreting the Supreme Court case broadly, held that it was lawful under the NLRA for an employer to:

1. Implement class action waivers and individualized arbitration agreements in response to class claims; and
2. Threaten employees with discipline for refusing to enter into an arbitration agreement (finding that the employer’s threatening statements amounted to nothing more than “an explanation of the lawful consequences of failing to sign the agreement[.])”

The Board also has held that procedural issues governed by a collective bargaining agreement should be reserved for an arbitrator to decide, not an administrative law judge.7

• Employers should have their arbitration agreements reviewed by counsel to evaluate how they may impact employee rights under the NLRA.

1. Epic Systems Corp. v. Lewis, 584 U.S. 497 (2018)