Quick Hits
- The NLRB upheld an arbitration confidentiality provision to the extent it protected the confidentiality of the proceedings and the outcome, while found that the provision’s blanket prohibition on disclosing the existence of arbitration was unlawful.
- The NLRB also upheld an arbitration provision covering “any and all” employment-related claims, finding a prominent savings clause reasonably informed employees of their rights to file a charge with the NLRB.
On August 10, 2026, the NLRB issued a 2–1 supplemental decision in Ralphs Grocery Company, 375 NLRB No. 25. The NLRB found that an employer’s arbitration policy applying to “any and all” claims did not unlawfully interfere with employees’ access to the NLRB processes. Notably, the NLRB also upheld most of the arbitration policy’s confidentiality provision, finding it was shielded by the Federal Arbitration Act (FAA). But the NLRB found that a blanket prohibition on employees’ acknowledging the existence of an arbitration was not protected because it exceeded the scope of the arbitration process.
The decision resolved those two lingering questions after the Ninth Circuit Court of Appeals remanded the case—which started as a California wage-and-hour class action and Private Attorneys General Act (PAGA) lawsuit—following the Supreme Court of the United States’ 2018 decision in Epic Systems Corp. v. Lewis. That case resolved a separate issue over a class-action waiver in favor of the employer.
Confidentiality Clause Mostly Upheld
The arbitration confidentiality provision at issue required employees to keep the “existence, content, and outcome” of any arbitration proceeding “in the strictest confidence” and prohibited disclosure “without the prior written consent of all the parties.”
The NLRB analyzed the provision under its 2020 precedent in California Commerce Club, which held that confidentiality provisions contained in an arbitration agreement are shielded by the FAA to the extent that they protect the confidentiality of an arbitration proceeding. The NLRB noted that California Commerce Club recognized that while employees’ interest in discussing terms and conditions of employment is at the heart of Section 7 protection, a confidentiality provision “would nevertheless be lawful if shielded by the FAA.”
In the instant case, the NLRB thus found that the “portions of the confidentiality provision restricting the disclosure of the content and outcome of the arbitration are limited to the rules under which the arbitration will be conducted” and are lawful. In particular, the NLRB said the part of the confidentiality clause prohibiting the disclosure of “the outcome” of the arbitration is consistent with California Commerce Club.
However, the NLRB said the provision’s blanket prohibition on disclosing the very existence of an arbitration proceeding crossed the line. “Prohibiting the disclosure of the fact that the arbitration ever happened long after it ended is a perpetual gag order against disclosing, outside the arbitral forum, that the arbitration ever occurred,” the NLRB said. (Emphasis in original). The NLRB said the blanket provision was therefore unlawful under the NLRA since the overall arbitration policy applied to all claims, including claims arising under the NLRA.
Arbitration Policy Does Not Unlawfully Interfere With NLRB Access
The arbitration policy at issue required arbitration for “any and all … employment-related disputes” between employees and the employer “that would constitute cognizable claims or causes of action in a federal, state or local court or agency under applicable federal, state or local laws.” The policy contained a “savings clause” that expressly stated that employees “retain the right under the National Labor Relations Act to file charges with the National Labor Relations Board.”
The NLRB found the arbitration policy with the “prominent, stand-alone” savings clause was lawful because “a reasonable employee could not interpret the arbitration policy to restrict their right to file charges with the Board.” Further, the policy did “not give employees the impression that filing charges would be futile.” (Emphasis added).
Key Takeaways
The NLRB decision reinforces precedent upholding confidentiality provisions in arbitration agreements and highlights the interplay between the NLRA and FAA. The ruling indicates that such confidentiality provisions, even if they limit employees’ Section 7 interests in disclosing details of arbitration proceedings, are nevertheless lawful if protected by the FAA. However, the NLRB drew a line between maintaining confidentiality of the arbitration process and imposing a prohibition on acknowledging that an arbitration even occurred, the latter of which violates the NLRA.
The decision further suggests that well-drafted arbitration agreement with a prominent and clear savings clause is sufficient to survive scrutiny under the NLRA.
Employers wishing to maintain arbitration agreements may wish to review their arbitration policies and accompanying confidentiality provisions in light of this recent NLRB decision.
Ogletree Deakins’ Arbitration and Alternative Dispute Resolution Practice Group and Traditional Labor Relations Practice Group will continue to monitor developments and will provide updates on the Arbitration and Alternative Dispute Resolution, California, Class Action, and Traditional Labor Relations blogs as additional information becomes available.
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