The National Labor Relations Board has issued a split ruling finding that some confidentiality provisions in mandatory arbitration agreements are lawful while others cross a legal line.
The August 10, 2026 decision, issued as a 2-1 supplemental ruling in Ralphs Grocery Company, 375 NLRB No. 25, resolves two lingering legal questions following a Ninth Circuit Court of Appeals remand.
The case originated from security guard Terri Brown’s 2009 California class action alleging meal-and-rest-break violations against Ralphs Grocery Company.
After Ralphs petitioned to enforce its arbitration agreement, Brown challenged the policy before the NLRB, which examined the agreement’s class-action waiver, savings clause, and confidentiality provisions.
The Board majority, comprising Chairman Murphy and Member Mayer with Member Prouty dissenting, found that restricting employees from discussing the content and outcome of arbitration proceedings was lawful.
That conclusion was consistent with the Board’s earlier precedent in California Commerce Club, 369 NLRB No. 106 (2020), which held that the Federal Arbitration Act shields confidentiality provisions protecting the substance of arbitration proceedings.
However, the Board unanimously drew a firm boundary, finding that a blanket prohibition on employees even acknowledging that an arbitration existed violated the National Labor Relations Act.
The Board held that such a prohibition restricted employees’ Section 7 right to communicate about terms and conditions of employment and was not protected by Federal Arbitration Act policy.
On the question of whether the arbitration agreement interfered with employees’ ability to file unfair labor practice charges, the majority found the policy’s savings clause resolved the matter in Ralphs’s favour.
The majority concluded that “a reasonable employee could not interpret the arbitration policy to restrict their right to file charges with the Board” given the “prominent, stand-alone” nature of the savings clause.
The majority further noted that the policy did “not give employees the impression that filing charges would be futile,” reinforcing the legal sufficiency of a clearly worded savings clause.
Member Prouty, dissenting, views the savings clause as an inadequate assurance that employees were able to access the Board, signalling ongoing disagreement over how protective such clauses truly are.
The ruling draws a clear legal distinction between maintaining confidentiality around arbitration proceedings and silencing employees entirely about whether arbitration occurred at all.
Employers using mandatory arbitration agreements should treat the existence of arbitration as a matter employees retain the right to discuss freely under federal labour law.
The decision reinforces that a well-drafted arbitration agreement featuring a prominent and clear savings clause can withstand scrutiny under the National Labor Relations Act.
Employers are advised to review their arbitration policies and confidentiality provisions carefully in light of the Board’s updated guidance from this ruling.