NLRB Says Employers Can Change Arbitration Agreements After Being Sued

Following the Supreme Court’s Epic Systems v. Lewis decision last year, which approved of employers’ use of mandatory arbitration agreements with class action waivers, questions remained unanswered. Two of those lingering questions were answered on August 14, when the National Labor Relations Board’s pro-employer majority ruled that employers may lawfully – under the National Labor Relations Act – update their mandatory arbitration agreements in response to workers participating in wage and hour class or collective actions under either the Fair Labor Standards Act or state laws. Going even further, employers can condition further employment on the new arbitration agreement and warn employees that failure to agree will result in termination.