The National Labor Relations Board is drawing a lot attention from the media for its recent crackdowns on companies’ social media policies, but the NLRB has increasingly been scrutinizing other common policies in non-union companies’ employee handbooks. Guidelines on keeping information confidential, being courteous in the workplace, not disparaging the company or supervisors, and resolving disputes are all under the NLRB’s microscope. The key, in the NLRB’s eyes, is whether the policy would limit employees’ right to “engage in concerted activity” (which includes everything from two employees discussing the workplace to a group of employees forming a union) or suggests that employees can’t engage in collective bargaining. So, for instance, the NLRB has taken issue with confidentiality policies that prohibit the sharing of information regarding other employees because sharing employee information is a key step in organizing. Similarly, the NLRB has taken action against non-union companies that prohibit employees from disparaging co-workers or the company, because employees have a right to share their grievances about the workplace. There is no question that the NLRB is continuing to assert itself in non-union workplaces. Employers can look forward to more NLRB cases claiming that standard handbook policies violate the National Labor Relations Act. If you haven’t recently reviewed your employee handbook and policies with an eye toward these issues, it makes sense to do so before you find yourself in the NLRB’s crosshairs.
NLRB
Tide Continues in Favor of Class Action Waivers in Arbitration Agreements
On Friday, the U.S. Court of Appeals sitting in New York handed down its decision in Sutherland v. Ernst & Young, giving employers yet another leg up in enforcing requirements that their employees forego class actions and pursue their claims individually in arbitration.
Since the Supreme Court’s decision two years ago that a class action waiver in an arbitration agreement was enforceable (which, practically, means that a party can avoid class actions if it’s agreed to in advance in an arbitration agreement), plaintiffs’ attorneys and government agencies have been trying to find exceptions to the Court’s holding in the employment context. The three primary arguments have been (1) that the National Labor Relations Act gives employees an unwaiveable right to participate in collective litigation, (2) that the Fair Labor Standards Act’s special provisions for collective (opt-in) actions trump the Federal Arbitration Act, and (3) that plaintiffs can’t be required to arbitrate individually if their claims are so small that individual actions are impractical. The third of these arguments was rejected by the Supreme Court this June in the Amex decision. In the Sutherland decision last week, the Second Circuit Court of Appeals joined the majority of courts in rejecting the first and second arguments as well.
What does this mean for your business? It means that you should seriously consider implementing a mandatory arbitration policy that requires individual arbitration of employee claims. Arbitration isn’t perfect – and a requirement that cases be arbitrated individually could be turned against an employer if a large group of employees each files an individual claim – but in many cases the downsides of arbitration are far outweighed by the ability to avoid class actions.
The Employment Lawyers 