NLRB General Counsel Proposes Significant Change to Arbitration Agreements and More

Nilan Johnson Lewis PA
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After one year in office, the general counsel at the National Labor Relations Board (NLRB) is creating a buzz in the legal community. General Counsel Peter Robb has expressed strong recommendations to give employees access to collect more damages after an arbitration or settlement – a departure from the otherwise employer-friendly and red-tape cutting expectations of the Trump administration. Currently, employers cannot use an arbitration agreement or settlement agreement to prevent an employee from filing a charge or complaint with an administrative agency, such as the NLRB or the EEOC. However, employers can require employees to waive their right to recover any relief or award from the agency, such as additional compensation. In a brief responding to the recent U.S. Supreme Court case Epic Systems v Lewis, the general counsel concluded employers cannot limit an individual’s remedies before an agency. According to Jason Hungerford, labor and employment attorney at Nilan Johnson Lewis, if the NLRB affirms the general counsel’s recommendation in Prime Healthcare Paradise Valley LLC, it could impact arbitration, settlement, and similar agreements. “Employers should remain vigilant while awaiting the board’s decision. This decision could impact the enforceability of numerous agreements,” explains Hungerford. Hungerford notes that the general counsel has signaled a willingness to push his recommendations into practice in a way that the NLRB Regional offices have not seen in years.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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