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Labor Board Rethinks Worker Gag Orders in Arbitration Pacts (1)

Jan. 18, 2022, 10:47 PMUpdated: Jan. 18, 2022, 11:44 PM

The National Labor Relations Board will reconsider Trump-era precedent allowing workplace arbitration agreements to include clauses requiring workers to keep the proceedings confidential.

The NLRB on Tuesday invited the public to file briefs on whether it should reverse its 2020 ruling in California Commerce Club that allowed a gag order in an arbitration agreement.

The board also asked for views on reworking board precedent that says employers can use disclaimers—typically known as savings clauses—to fix arbitration agreements that otherwise would be deemed unlawful for obstructing a worker’s ability to file charges with the NLRB.

The case could let the Democratic-majority board make mandatory arbitration contracts more worker-friendly by outlawing confidentiality requirements and boosting employee protections against losing access to administrative agencies.

The issues stem from an arbitration pact used by Ralphs Grocery Co.

The case is Ralphs Grocery, N.L.R.B., Case 21–CA–073942, Notice of invitation to file briefs 1/18/22.

(Updated with additional details.)

To contact the reporter on this story: Robert Iafolla in Washington at riafolla@bloomberglaw.com

To contact the editor responsible for this story: Jay-Anne B. Casuga at jcasuga@bloomberglaw.com

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