Two Hot Topics: Mandatory Arbitration, and Separation / Confidentiality Agreements

Revisiting mandatory arbitration agreements: Are they valid? What should they include?

Just recently, mandatory arbitration agreements with class action waivers seemed a foolproof way to avoid risky class actions and jury trials. But legal challenges by the National Labor Relations Board, other government agencies, and the plaintiffs’ bar raise questions as to whether to have mandatory arbitration at all. Littler Shareholders David Wirtz and Michael Weber will review the status of the law and provide drafting tips addressing such issues as:

• Class action waivers
• Jury trial waivers
• Opt-out clauses

Separation and confidentiality agreements: Recent developments and reasons to revisit yours

Since 2014, the Equal Employment Opportunity Commission, Securities and Exchange Commission, Occupational Safety and Health Administration, and other federal agencies have sought to invalidate confidentiality, cooperation and other standard provisions of common employment-related agreements, including release agreements, employment contracts, and restrictive covenants. Meanwhile, the 2016 Defend Trade Secrets Act provides protections to employers with properly drafted employment, confidentiality and non-disclosure agreements. These developments should prompt employers to review and revise offer letters, employment agreements, restrictive covenant agreements, template releases, and other employment-related agreements and policies. Littler Shareholders Terri Solomon and Philip Berkowitz will discuss how employers might want to address these challenges and provide state of the art language designed to withstand attack.