The U.S. Department of Labor asked the National Labor Relations Board for a ruling on whether confidentiality requirements in employee arbitration agreements were illegal. This was because they discourage workers from filing wage-law complaints.
DOL in An amicus brief was filed with the board Monday. It stated that it relies upon worker complaints to steer federal law enforcement and that agreements not to reveal details of legal proceedings hinder the agency’s mission.
Seema Nanda (Solicitor for Labor), DOL’s top-ranking legal officer, stated in a statement that confidentiality agreements discourage workers from speaking to their peers about their experiences, taking collective action, and cooperating with department investigation.
In January, the NLRB requested amicus briefs to determine whether it should overturn Trump’s era precedent. It stated that confidentiality agreements were valid under federal labor law so long as workers can still file complaints with government agencies.
The Workplace Policy Institute is the lobbying arm for management-side labor law firm Littler Mendelson. It started in a separate brief Monday that the 2020 NLRB ruling struck an appropriate balance between workers’ rights and business rights and should therefore be upheld.
AFL-CIO, Weinberg Roger & Rosenfeld, a union law firm, and non-profits Public Justice and National Employment Lawyers Association all submitted briefs urging NLRB to reject the Trump-era decision California Commerce Club.
In that ruling, the board stated that the Federal Arbitration Act requires arbitration contracts to be enforced according to their terms. This is more important than the potential to discourage workers from exercising their rights under federal labor laws.
Monday’s briefs were filed in the case of Kroger Co subsidiary Ralphs Grocery Co. Workers had to sign arbitration agreements that contained confidentiality provisions.
Ralphs Grocery Co., National Labor Relations Board. 21-CA-073942.