The purpose of this communication is to follow-up with you concerning a prior alert about the National Labor Relations Board’s (“the Board”) recent decision concerning mandatory alternative dispute resolution programs that require employees subject to the National Labor Relations Act to agree to waive their right to pursue a class action-type claim in any forum. The Board has ruled that an employer violates the National Labor Relations Act, and thereby commits an unfair labor practice, by maintaining a policy or program that requires employees to arbitrate any employment-related claims on an individual basis and does not allow employees to assert class or collective-type claims in any forum. This decision is a case of first impression and specifically rejected the opinion previously issued by the Board’s own General Counsel that approved such waivers. The wisdom of the opinion is debatable, but the effect is clear. You can no longer require an employee who is subject to the NLRB’s jurisdiction to sign an arbitration agreement which waives his/her right to file a class action claim against you in any forum.
We would be pleased to review any alternative dispute resolution program you have in place to ensure that it does not run afoul of the National Labor Relations Act (“NLRA”). Mere maintenance of such a program that applies to employees who are subject to the NLRA could result in your company being charged with an unfair labor practice, or, even worse, possibly invalidating the program in its entirety should it be challenged in court. This decision impacts all employers, both union and non-union, who have any employees who are subject to the Board’s jurisdiction.
Please see full publication below for more information.
