Employees Must Have the Right to Share Information about Workplace Disputes and Resolutions
On March 21, 2022, the National Women’s Law Center filed a brief, along with Service Employees International Union (SEIU) and the National Employment Law Project (NELP), to tell the National Labor Relations Board that employers should not be able to force workers to accept confidentiality in arbitrations—and if they do—that violates the National Labor Relations Act. In our brief we highlight the ways that employer-mandated confidentiality in arbitration can especially harm women workers, and in particular low-paid women of color.
Put another way: when employees go through arbitration to resolve workplace disputes, employers should not be able to force employees to keep what happened to them, or how it was resolved, a secret.
Arbitration, an out-of-court dispute resolution process, has become incredibly common. Clauses forcing people to sign away their rights to go to court are often buried in fine print in employment contracts, terms of service, rental agreements, and other contracts. Individuals often have no way to negotiate the terms. When workers are forced into arbitration, it can stack the deck against employees, in favor of employers. For instance, employees who are forced to arbitrate win cases less often and recover less when they do because arbitration forums (outside of the union or collective bargaining context) are designed by employers, for employers. Employers prevail in more than 97% of arbitration disputes.
In a unionized workplace, arbitration is almost always part of a bargained-for grievance and arbitration process and in that context, unions help to level the playing field. In a nonunion context, however, rather than using arbitration as a tool to enforce an underlying collectively bargained contract, employers too often use arbitration to avoid being held accountable publicly in a courtroom. However, no matter the context for the arbitration—union or nonunion—employers should never be able to mandate confidentiality.
Employer-mandated confidentiality compounds the harms that often already flow from arbitration. When forced upon workers, confidentiality operates to isolate victims of employer wrongdoing, shield serial wrongdoers from workplace and public accountability, and allow harmful conduct to persist at a company. Further, because of wage gaps, unequal pay, and a culture of secrecy around pay, women, and particularly Black and brown women, are unlikely to have the resources to challenge employer-mandated confidentiality, especially if it could result in a lost job or lost income.
The #MeToo movement has also exposed the harms that employer-mandated confidentiality in arbitration has in cases of sex harassment and retaliation. In the four years since #MeToo went viral, many thousands of workers, mostly women, have come forward to share their experiences and to demand justice. When women workers and all those who have experienced assault and harassment share their stories, it gives others the courage to come forward as well and helps hold harassers accountable. But when those who report such conduct are forced into employer-mandated confidential arbitration, it further silences survivors and enables employers to continue to employ, protect, and enable serial sexual harassers. Public accountability is also a critical tool to encourage employers to take steps to prevent harassment from occurring in the first place and to begin to change toxic workplace cultures.
Working people subject to wage theft, discrimination, including harassment, and other violations of their rights on the job should be able to choose to share these harms with colleagues and discuss ideas around collective action instead of being bound by employer-mandated confidentiality provisions in arbitration. Ensuring that working people are not forced by their employers into confidential arbitration is critical for creating safe and healthy workplaces, where harm no longer grows and festers in secret. This is particularly important for workers who have been and continue to be marginalized or often lack bargaining power at work.