June 21, 2019
In a unanimous decision, the National Labor Relations Board signaled the GOP majority would not always side with employer arguments in workplace cases by invalidating an employer’s mandatory arbitration agreement that the Board found could be reasonably viewed as preventing employees from filing charges with the Board.
Broad arbitration language prohibited: Although the employer’s arbitration agreement did not explicitly prohibit employees from filing NLRB charges, it included broad language that “all claims or controversies for which a federal or state court would be authorized to grant relief” are subject to arbitration.
Case proves new Boeing standard will not always save employers: The Board analyzed whether the agreement was unlawful under the previous Boeing decision’s balancing test, which has been generally viewed as providing greater flexibility to employers. In that decision, the Board held that when a facially neutral policy or rule, when reasonably interpreted, potentially interferes with employees’ rights under the National Labor Relations Act, the Board must balance the nature and extent of the potential impact with legitimate justifications associated with the policy or rule.
Takeaway: Despite criticisms of the Board as being too pro-employer, the decision shows the GOP majority will not always side with employers. Employers still need to review their arbitration agreements and other policies to ensure that employee rights are protected.