. 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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