From Lexology, Brooks Pierce McLendon Humphrey & Leonard LLP discuss a ruling by the National Labor Relations Board (NLRB) that said that an arbitration policy must explicitly provide that a worker has the right to file an unfair labor practice charge. They write:
the National Labor Relations Board (whose jurisdiction reaches most employers, regardless of whether they have a union) ruled that such policies must explicitly provide that they do not apply to the right to file an unfair labor practice charge under the National Labor Relations Act (NLRA). E. A. Renfroe & Co. Inc. & Kimani Adams, 368 NLRB No. 147 (Dec. 16, 2019). Even though the policy did provide that it did NOT apply to “workers’ compensation, unemployment benefits, or other claims that, as a matter of law, the parties cannot agree to arbitrate”, the Board found this was not sufficient: The Board found the burden on the employee of determining what claims are excluded as a matter of law is unreasonable.
Therefore, the employer’s decision to terminate the employee because she refused to agree to the policy was a violation of the NLRA and the Board ordered the employer to offer her reinstatement, full back pay, and compensation for the expenses related to job search efforts and tax consequences of her termination. The employer was also ordered to amend its policy and so inform all employees.