NLRB Curbs Scope of Arbitration Confidentiality Clauses
The NLRB has ruled that while arbitration outcomes can be kept confidential, a blanket ban on acknowledging that an arbitration even occurred is an unlawful 'gag order' under the NLRA.
In its August 10, 2026, decision in Ralphs Grocery Company, the National Labor Relations Board found that a key part of a mandatory arbitration agreement's confidentiality clause violated the National Labor Relations Act. The Board held that employers may lawfully prohibit employees from disclosing the "content and outcome" of an arbitration, as that confidentiality is shielded by the Federal Arbitration Act. However, it ruled that a blanket prohibition on disclosing the mere "existence" of an arbitration is an unlawful "perpetual gag order" on employee rights under Section 7 of the NLRA. The decision creates a critical drafting distinction for counsel. Many standard arbitration agreements contain broad confidentiality clauses that could now be deemed partially unlawful and unenforceable. Sophisticated employers and their counsel care because this ruling requires an immediate review of standard agreements to ensure compliance. The NLRB also affirmed that an agreement compelling arbitration for "any and all" claims is lawful so long as it contains a prominent, standalone savings clause explicitly preserving employees' right to file charges with the Board. Counsel should review client arbitration agreements to ensure confidentiality provisions do not bar disclosure of a proceeding's existence.