Ask the Experts: Arbitration Clauses
Q: May we add an arbitration clause prohibiting class action lawsuits to our employment contracts?
A: Yes. Until recently , courts were split on the issue and the National Labor Relations Board (NLRB) ruled that “it is a violation of federal labor law to require employees to sign arbitration agreements that prevent them from joining together to pursue employment-related legal claims in any forum, whether in arbitration or in court.”
However, in its May 2018 decision, the U.S. Supreme Court (SCOTUS) ended the split, overruled the NLRB, and held that arbitration agreements providing for individualized proceedings (thus banning class actions) are enforceable under the Federal Arbitration Act (FAA), and neither the FAA’s saving clause nor the National Labor Relations Act (NLRA) suggest otherwise.
As a result of SCOTUS’s decision, an employer may add an arbitration clause waiving class and collective actions to its employment contracts without fear of violating federal law due to the mere presence of the clause. However, it is essential that any employment contract – with or without an arbitration clause – comply with all applicable laws. Therefore, as always, we recommend seeking counsel to properly draft your arbitration agreement and for further guidance.
One issue impacted by the recent acceptance of arbitration causes is sexual harassment. This topic is among those discussed in a webinar for ThinkHR customers, Top 5 Steps to Mitigate Workplace Sex Discrimination and Harassment, now available to watch on demand on Comply.