employees allowed to discuss arbitral proceedings, its merit and documents
disclosure with third parties if they signed an exclusive arbitration
agreement? In Pfizer,
Inc., (Case 10-CA-175850) an administrative law judge of the
National Labor Relation Board (NLRB) ruled that a confidentiality obligation
within the employment arbitration clause is prohibited under the National Labor
Relations Act (NLRA). Pfizer did not apply Epic System Corp.
v. Lewis (584 U.S. ___
(2018)) and/or AT&T Mobility LLC v.
Conception (563 U.S.
333 (2011)) stating that both cases did not control. In Epic the
US Supreme Court confirmed the validity of an arbitration clause that
bars employees under collective contracts from filing a class action.
argument rests on the distinction between procedural and substantive
right analysis: Epic allowed employees to be limited by a mere procedural
right (as a class); on the contrary, it seems that Employees cannot be limited
in their substantive right to discuss their cases with third parties. More
litigation is underway shaping the final judicial determination.
Pending this litigation, employers are encouraged to carefully review their arbitration clauses and its confidentiality statements.