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

Employer Strategies to Defeat Challenges Amid Conflicting Court and NLRB Approaches

Recording of a 90-minute CLE webinar with Q&A

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Conducted on Tuesday, December 22, 2015

Recorded event now available

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This CLE course will prepare employment and labor counsel to face an emerging tactic used by plaintiffs challenging arbitration agreements and class action waivers: a trip to the National Labor Relations Board (NLRB). The panel will discuss this emerging tactic, how it can and has been used by employees, how the Board has reacted, and what employers can and should do now to try to defeat the continued challenges in this new arena to otherwise valid agreements.


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.



  1. Review of court decisions
  2. Review of NLRB rulings
  3. Strategies for defending claims filed with the NLRB
  4. Creating valid arbitration policies and agreements


The panel will address these and other key issues:

  • Which employers are not covered by the NLRB’s rulings?
  • Which employers and arbitration agreements are most at risk?
  • What relevant procedures must employers be familiar with to defend arbitration agreements?


Lonnie D. Giamela
Lonnie D. Giamela

Fisher & Phillips

Mr. Giamela represents employers in all aspects of labor and employment law, including fair employment, intellectual...  |  Read More

Tracy, Teresa
Teresa R. (Terri) Tracy

Freeman Freeman & Smiley

Ms. Tracy represents management in all areas of labor and employment law and litigation, including wrongful...  |  Read More

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