In 2020, the National Labor Relations Board (NLRB) ruled that companies that require employees to enter arbitration to resolve disputes can add a confidentiality clause to the contract. Now, the agency is rethinking its decision. The NLRB has published an invitation to the public to submit summaries on whether to adopt a new legal standard to determine whether silence orders in binding arbitration agreements violate Section 8(a)(1) of the National Labor Relations Act, as well as other legal issues.
Section 8(a)(1) States that it is an unfair labor practice for employers to “interfere with, restrict or coerce employees” when it comes to exercising their right to self-organize. Like Bloomberg Law states, this could lead to more worker-friendly arbitration agreements, as the absence of confidentiality clauses means they can speak out about their issue publicly and ask the appropriate administrative bodies for help if needed.
Private arbitrations that force workers to keep silent about their issue and proceedings is a controversial practice. They prevent workers who may be dealing with the same problem from connecting, thus preventing the public and the rest of a company’s workers from seeing emerging patterns. Companies have gotten into trouble for forcing issues like sexual harassment onto arbitration in the past, which some have chosen to end the practice. More than 150 Riot Games employees took a standstill after the developer forced the women who filed sexism lawsuits against him into arbitration in 2019. In the same year, Google decided to end forced arbitrations for sexual harassment cases following a standstill involving 20,000 workers. Airbnb and Activision Blizzard are two other companies that have decided to stop forced arbitration for sexual harassment cases.
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