Amex Employment Arbitration Policy held Unlawful by NLRB

Amex Card Services Company ("Amex") operates a call center in Phoenix, AZ.  Amex required all new hires to sign an acknowledgement form acknowledging receipt and understanding of its Arbitration Policy as a condition of employment. The policy mandated final and binding arbitration to resolve all employment-related disputes. The policy also mandated that all claims subject to arbitration be submitted on an individual basis. 

Three former Amex employees filed a charge with the National Labor Relations Board (NLRB) alleging Amex’s Arbitration Policy and Acknowledgement form violated 8(a)(1) of the National Labor Relations Act (NLRA) by requiring employees to arbitrate wage and hour claims on an individual basis.

Following D. R. Horton Inc., the NLRB panel found Amex engaged in unfair labor practices by maintaining and enforcing a policy that compelled employees to waive class or collective actions as a condition of employment and that would lead employees to believe the policy bars or restricts them from filing charges with the NLRB or otherwise accessing the NLRB’s processes.

In its analysis of the latter holding, the panel made one tantamount distinction between the policy and acknowledgment form. The policy clearly stated "any claim under the National Labor Relations Act was not covered." However, the form did not. As a result, the NLRB deemed the policy ambiguous when read together. Construing the ambiguity against AMEX, the panel found the policy unlawful because employees would reasonably believe that it interferes with their ability to file a charge or access the NLRB’s processes. 

This case highlights the importance of ensuring policies and acknowledgment forms are consistent. It also highlights the importance of updating employment policies to reflect changes in the law. Amex’s policy went into effect sometime in 2003. D.R. Horton was decided in 2012. Had Amex updated its arbitration policy accordingly, it could have avoided the employees’ suit and drafted a valid arbitration policy. Employers should review policies with their attorneys’ yearly.