Employment Arbitration and the NLRA: NLRB’s Shifting Boundaries for Confidentiality and Discovery
The National Labor Relations Board’s recent Ralphs Grocery Company decision puts a new focus on the boundary between arbitration procedures protected under the Federal Arbitration Act and employee rights under the National Labor Relations Act. This report examines how the Board has approached confidentiality restrictions and discovery in employment arbitration and what employers may want to consider when drafting and administering arbitration agreements.
Key Takeaways
- The FAA may protect confidentiality rules for materials created or obtained through arbitration, but not workplace facts employees already know.
- Employers generally should not bar employees from disclosing that an arbitration exists or discussing independently known workplace facts.
- Confidentiality provisions can more clearly define what is protected by focusing on the source of the information, such as discovery, submissions, transcripts, and awards.
- Requests for employee group communications may raise separate NLRA issues even when the material is otherwise discoverable.
- Employers may want to consider NLRA issues both when drafting arbitration agreements and when handling discovery, confidentiality, and enforcement.
CONFIDENTIALITY, DISCOVERY, AND THE NLRA
In the years since Epic Systems Corp. v. Lewis, National Labor Relations Board decisions have continued to shape how workplace rights interact with employment arbitration. The recent Ralphs Grocery Company decision adds to that developing body of law, particularly around confidentiality, employee communications, and what employers may control once a dispute moves into arbitration.
Current Board precedent generally distinguishes between information created or obtained through the arbitration process and workplace facts employees already know. That distinction can affect how confidentiality provisions are written and enforced, as well as how employers handle employee discussions about underlying workplace issues.
Discovery is another developing area. Requests for employee texts, emails, or other communications may raise labor law questions even when the material is otherwise relevant to an arbitration.
This report looks at these evolving boundaries and highlights practical considerations for drafting and administering employment arbitration agreements, including how employers define confidential information, approach discovery, and account for employees’ rights under the NLRA.
