Steven Swirsky Quoted in Article, "Public Hears from NLRB's Top Counsel"

Perhaps the most newsworthy note about a recent webinar involving Lafe E. Solomon, acting general counsel of the National Labor Relations Board, and Steven M. Swirsky, employment lawyer with Epstein Becker & Green, is that Solomon participated. . . .

Each of the webinar's four focuses of interest -- class-action waivers in mandatory arbitration agreements, confidentiality instructions during internal investigations, at-will employment statements and disclaimers, and regulating employees' use of social media -- were rife with examples of the two sides' conflicting priorities. . . .

In 24-Hour Fitness, the board ruled -- in a decision supported by the administrative law judge -- that even allowing employees to opt out of such waivers within 30 days after receiving their employee handbooks does not put an employer on the right side of the law. In essence, said Solomon, employees' rights "can't be taken away [with the caveat] that they have to do something to regain those rights."

Yet the real takeaway for employers, Swirsky said, is that "we're not just talking about unionized workplaces or workplaces where unionization is likely [or being voted on], but really every workplace ... anybody who is an employee as defined by the NLRA or anyone who works for an employer covered by the Act."

Nor, he said, does the [D.R. Horton Inc. and Michael Cuda] rule apply to every employee. It, and other rulings like it, "applies to employees; it doesn't apply to supervisors, managers -- including executives -- so we're not talking about a complete and utter prohibition" on requiring individual arbitration and disclosure restraints.

"That's the other big takeaway," he said. "Who is being required to arbitrate [and who isn't]?" In the employer community, he added, "there's concern over how far you can go with this."