NLRB Decides First Mandatory Arbitration Case Following Supreme Court's Epic Systems Ruling

The U.S. National Labor Relations Board (NLRB) on Wednesday addressed several important questions involving mandatory arbitration agreements following the U.S. Supreme Court's Epic Systems decision, including: that employers are not prohibited under the National Labor Relations Act (NLRA) from informing employees that failing or refusing to sign a mandatory arbitration agreement will result in their discharge; they're not prohibited under the NLRA from promulgating mandatory arbitration agreements in response to employees opting in to a collective action under the Fair Labor Standards Act or state wage-and-hour laws; but they are prohibited from taking adverse action against employees for engaging in concerted activity by filing a class or collective action, consistent with NLRB's long-standing precedent. This week's decision was indeed the first to address the lawfulness of employer conduct surrounding mandatory arbitration agreements since the Supreme Court's Epic Systems ruling issued in 2018. In Epic Systems v. Lewis , the court held that class- and collective-action waivers in mandatory arbitration agreements do not violate the NLRA.