II. The Board Attacks Arbitration Policies and Agreements in Two Key Ways.

The Board, and its General Counsel, in recent years have effectively adopted a hostile view of broad arbitration policies that many nonunion employers maintain with their employees.

A. Arbitration Policies Must Explicitly Inform Employee of Right to File Complaint with NLRB.

The Board has found that arbitration policies or agreements that do not expressly inform employees that they are not required to arbitrate claims or complaints under the NLRA and retain their right to file Board charges violate employees’ Section 7 rights and therefore constitute a violation of Section 8(a)(1) of the Act.

B. NLRB Objects to Class Action Waivers

In addition to attacking arbitration policies that fail to advise employees about their rights to file charges under the Act with the NLRB, the Board has attacked certain arbitration policies for a separate and largely unrelated reason. Specifically, the Board has objected to arbitration polices that include a provision that has become to be known as a “class action waiver.” As businesses have become more concerned with costly class and collective action claims by employees, employers, in addition to requiring employees to arbitrate employment claims generally, are also including provisions in their arbitration policies in which the employee agrees that the employee waives any right to bring an employment-related claim, either in court or through the arbitration process in the form of a class or collection action. In other words, employers require that if an employee is going to pursue claims, the employee must bring the claims individually through the arbitration process and never collectively.

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