Employees' New Tactic to Challenge Arbitration Agreements: A Trip to the NLRB

Description

Arbitration agreements are very attractive to employers because they offer the promise of limiting liability when resolving a host of potentially expensive employment claims, from wage and hour disputes to discrimination claims. Employees seeking to bring claims frequently challenge arbitration agreements by arguing that the class action waivers in the agreements violate the National Labor Relations Act.

State and federal courts are becoming increasingly willing to enforce these agreements, especially as employers have become wiser about drafting them to meet judicial concerns about procedural and substantive conscionability. Faced with the prospect of routinely losing their challenges, employees and their attorneys are starting to use a new tactic to challenge these agreements: filing unfair practice claims with the NLRB. The NLRB has proved to be a friendly forum for plaintiffs, finding arbitration agreements void for a variety of reasons—an approach in stark contrast with state and federal court holdings.

Listen as our authoritative panel of employment attorneys discusses this emerging tactic increasingly being used by plaintiffs to challenge arbitration agreements. The panel will outline strategies for defeating challenges to arbitration agreements brought before the NLRB and discuss best practices for establishing valid arbitration policies and agreements that will withstand both court and NLRB scrutiny.