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MVA Litigation Blog: An Agreement to Arbitrate Employment Claims

February 2020

Charlotte Litigation Member Tony Lathrop‘s MVA Litigation Blog articles titled, “Watch Your Language: An Agreement to Arbitrate Employment Claims Must Allow for NLRA Claims Before the NLRB” and “An Agreement to Arbitrate Employment Claims Must Also Allow for Access to Full Remedies Before the NLRB” were published on February 6.

Watch Your Language: An Agreement to Arbitrate Employment Claims Must Allow for NLRA Claims Before the NLRB

The U.S. Supreme Court settled the long-standing dispute regarding the viability of class arbitration waivers in employment contracts with its determination in Epic Systems Corp. v. Lewis, 584 U. S. ____ (2018) that they indeed are enforceable, contrary to the position taken by the National Labor Relations Board (NLRB). But that did not close the book on all questions regarding employment agreement arbitration clauses, nor did it mean that the NLRB would resolve remaining questions regarding the limits on their enforceability in favor of the employer. While class waivers and related attempts to compel individual arbitration are now clearing hurdles at the NLRB, the agency has issued several decisions invalidating arbitration agreements based on the breadth of the claims employees are required to arbitrate. Applying the newer analytical framework for analyzing workplace policies established in The Boeing Company. 365 NLRB No. 154 (12/14/2017), the NLRB is reaffirming its position that arbitration agreements must permit, and not discourage, employees to file actions before the agency. So, where have arbitration clauses been falling short?

To read the complete article, please click here.

An Agreement to Arbitrate Employment Claims Must Also Allow for Access to Full Remedies Before the NLRB

In a separate post, we discussed several cases decided by the National Labor Relations Board (NLRB) in which the Board invalidated agreements requiring employees to arbitrate employment-related claims due to vague language that did not make it clear that employees retained the right to pursue claims under the National Labor Relations Act (NLRA) before the NLRB. The recent decision in Kelly Services, Inc.. 368 NLRB No. 130 (12/12/2019) illustrates that even explicitly permitting claims before the NLRB will not guarantee an arbitration agreement’s survival if substantial restrictions also are placed upon doing so. Under the analysis established in The Boeing Company. 365 NLRB No. 154 (12/14/2017) to determine the legality of facially neutral workplace policies, employees must have full access to the NLRB and its processes, including available remedies before the agency. Any restrictions imposed by an arbitration agreement cannot work to discourage or disincentivize employees from exercising those rights that they retain.

To read the complete article please click here.