Employers should carefully evaluate their employment agreements with a focus on eliminating provisions that may be unlawful, given a recent National Labor Relations Board (NLRB) ruling. Specifically, DISH Network was ordered on April 13, 2017, to revise or rescind its employment agreements after the NLRB found the agreements contain provisions that violate federal labor law. See

Specifically, DISH Network was ordered on April 13, 2017, to revise or rescind its employment agreements after the NLRB found the agreements contain provisions that violate federal labor law. See DISH Network, LLC, 365 N.L.R.B. No. 47 (4/13/17). This order applies to DISH Network’s entire U.S. workforce.

Since October 2013, DISH Network required all applicants to sign its mandatory arbitration agreements.  These agreements required employees at U.S. locations to arbitrate “any claim, controversy and/or dispute” against the employer, “whenever and wherever brought.”

Also, the arbitration agreement contained a strict confidentiality provision requiring that “all arbitration proceedings, including but not limited to hearings, discovery, settlements, and awards shall be confidential …”

An employer violates Section 8(a)(1) if it maintains an arbitration policy that employees would reasonably believe interferes with their ability to file a Board charge or to access the Board’s processes. Applying this, the Board had easily ruled that employees would reasonably understand the DISH Network agreement as prohibiting them from filing unfair labor practice charges or using the NLRB’s administrative processes. Accordingly, the agreement was unlawful.

Additionally, the Board found the agreement’s confidentiality requirement independently violated the NLRA (Section 8(a)(1)). Applying this section, the Board ruled that DISH Network’s agreement was a workplace rule that prohibits the discussion of terms and conditions of employment by prohibiting employees from discussing “all arbitration proceedings, including but not limited to hearings, discovery, settlements, and awards.” As such, the rule was unlawfully overbroad.

Considerations for your Company’s Employment Agreements

Decisions like this are reminders that broad company rules prohibiting employees from discussing workplace issues are likely to be inconsistent with NLRB rules and, therefore, unlawful.

So employers should review their employment agreements to eliminate blanket prohibitions. It is also recommended to expressly note that the agreement is not intended to interfere or restrict an employee’s rights under the NLRA or to file any NLRB charges. Such carve out provisions may save an agreement from being found unlawful.

For more practical advice and best practices for improving your company’s employment agreements and other policies, contact, employment attorney Jason Shinn. He routinely works with companies to implement HR best practices or update their existing policies to comply with federal and Michigan employment laws.