, PA
personal injury  -  employment law  -  commercial litigation
NLRB (National Labor Relations Board) Negates Employer Arbitration Policy:
The NLRB has again determined that an employer’s mandatory arbitration policy violates the National Labor Relations Act. The employer, Applebees Neighborhood Grill and Bar maintained a written policy requiring its employees to engage in mandatory dispute resolution including the mediation and arbitration of employment related complaints. Mediation is best described as a settlement conference using a neutral, third-party. The third-party, frequently an attorney, does not make any ruling but instead facilitates discussions between the two sides with an aim at finding an amicable resolution.

The process is confidential and the two sides frequently caucus apart from each other with the mediator moving back and forth between caucuses. Henry Kissinger was an excellent example of a skilled mediator, for those who are as old as me and remember the Israeli-Egypt peace negotiations. Arbitration, on the other hand, is basically a private trial. Evidence is introduced and the arbitrator makes a ruling in favor of one party or the other.

The NLRB ruled that the alternative dispute resolution policy violated the National Labor Relations Act because it bared employees from exercising substantive rights protected under the Act; specifically the right to bring a complaint with the Board or to file an action with the Courts. The Board rejected the employer’s argument that the policy was lawful under the Federal Arbitration Act.

It appears to this attorney that the Board’s decision, and the many similar decisions reached by the Board, conflicts with both the language and the intent of the Federal Arbitration Act. Ultimately, either Congress or the U.S. Supreme Court will need to address the matter. Until then, however, employers should attempt to include language exempting claims covered by the National Labor Relations Act from their arbitration policies.

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