In Prime Healthcare, the National Labor Relations Board (NLRB) stated that an arbitration agreement that did not expressly exclude claims filed with the NLRB was invalid. There, the arbitration agreement simply required that all claims between the employer and employee be subject to arbitration. There were a few exceptions identified for workers’ compensation and unemployment claims, but not for National Labor Relations Act (NLRA) claims processed through the NLRB.

The Board stated that although the arbitration agreement did not expressly state that NLRB claims are subject to the arbitration agreement, because it called for “all claims” to be arbitrated, with limited exceptions, it restricted employees’ access to the NLRB and its processes. The Board ordered the employer to rescind the unlawful agreement and provide notice to current and former employees.

Employers should ensure that arbitration agreements expressly exclude NLRB claims. A general disclaimer excluding anything that would interfere with employee rights may not be sufficient.

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