In
AT&T Mobility LLC , 370 NLRB No. 121 (2021), the NLRB majority (Members Ring and Emanuel) held that the Employer could lawfully maintain a workplace policy prohibiting its workers from recording conversations with their co-workers, managers or third-parties, even though its application in one particular circumstance was found unlawful. Notwithstanding the fact that the rule had been applied unlawfully, the Board majority concluded that the policy itself was lawful under
Boeing Co., 365 NLRB No. 154 (2017), and overruled in part its decision in
Lutheran Heritage Village Livonia, 343 NLRB 646 (2004), finding that an instance of unlawful application of a facially neutral rule does not automatically warrant a finding that the rule can no longer be lawfully maintained.
. That decision replaced the Board’s prior standard under
Lutheran Heritage Village-Livonia, which ruled that an unlawful chilling effect occurs whenever employees would reasonably construe a workplace rule to limit their protected activities. Under the standard in
Lutheran Heritage the Board waged a war on handbooks by invalidating many sensible rules concerning civility, honesty, respect, and other norms of behavior. The Board found ambiguous or subjectively defined rules that could cause confusion among employees about their rights to be unlawful. Under
The Boeing Co. the Board limited its review of rules that only implicitly or explicitly restrict employee activities, and balanced alleged restrictions against employers’ legitimate justifications for regulating conduct in the workplace. The war was over, for a time.
. That decision replaced the Board s
prior standard under
Lutheran Heritage Village-Livonia,
which ruled that an unlawful chilling effect occurs whenever
employees would reasonably construe a workplace rule to limit their
protected activities. Under the standard in
Lutheran
Heritage the Board waged a war on handbooks by invalidating
many sensible rules concerning civility, honesty, respect, and
other norms of behavior. The Board found ambiguous or subjectively
defined rules that could cause confusion among employees about
their rights to be unlawful. Under
The Boeing Co. the
Board limited its review of rules that only implicitly or
explicitly restrict employee activities, and balanced alleged
Thursday, April 8, 2021
Confidential arbitration agreements between employers and their employees are commonplace. Employers favor such agreements for many reasons, including preserving privacy and allowing legitimate claims to be either settled or litigated based on their merits, rather than the threat of public embarrassment or high defense costs. Employees, too, may value the confidentiality afforded by arbitration. In contrast to private and confidential arbitration proceedings, public testimony and publicly filed court pleadings, motions, and briefs may contain unflattering or salacious allegations that are readily accessible to the public and may harm an employee’s future employment prospects and reputation.
Confidentiality provisions, however, potentially restrict employees’ freedom to discuss terms and conditions of employment. Accordingly, in the past, the National Labor Relations Board (“Board” or “NLRB”) held that such provisions violated Se
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