05 December 2018 at 17:56 BST

NLRB general counsel comments may spark arbitration changes

Companies may have to look out for significant changes to employee arbitration agreements after general counsel comments, says attorney.


After one year in office, the general counsel at the US National Labor Relations Board (NLRB) is generating much legal comment and may shake up arbitration agreements, notes an expert labour attorney.

Not so friendly?

NLRB general counsel Peter Robb has presented strong recommendations to give employees access to collect more damages after an arbitration or settlement, which is a departure from the previous expectations of an employer-friendly and red-tape cutting Trump administration. Currently, employers cannot use an arbitration agreement or settlement agreement to prevent an employee from filing a charge or complaint with an administrative agency, such as the NLRB or the EEOC. However, employers can require employees to waive their right to recover any relief or award from the agency, such as additional compensation.

‘Not seen in years’

Following the US Supreme Court case Epic Systems v Lewis, Mr Robb said employers cannot limit an individual’s remedies before an agency. According to Jason Hungerford, labour and employment attorney at Nilan Johnson Lewis, if the NLRB affirms the general counsel’s recommendation in Prime Healthcare Paradise Valley LLC, it could impact arbitration, settlement, and similar agreements. ‘Employers should remain vigilant while awaiting the board’s decision. This decision could impact the enforceability of numerous agreements,’ he explains. Mr Hungerford notes that the general counsel has signaled a willingness to push his recommendations into practice in a way that the NLRB Regional offices have ‘not seen in years.’


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