Edit Your Arbitration Clause So Confidentiality Survives and Employees Can Still Say It Happened

A defensible arbitration policy can keep the substance of a case confidential, but it cannot stop an employee from saying that an arbitration happened.

The 2026 Ralphs Grocery decision, a federal labor board case, states the rule.

For HR leads and founders responsible for an employment arbitration policy, the practical move is to edit the clause, not abandon arbitration.

Most policies were written to protect sensitive information. That instinct is reasonable. The problem is that many clauses go further and silence employees about the fact that a proceeding exists. The 2026 decision separates those ideas.

Confidentiality can survive if it stops at the process

The NLRB, the federal labor board, accepted a confidentiality rule that limited employee discussion of what happened inside the arbitration and what the result was.

That gives you room to protect sensitive case material without turning the policy into a general silence rule.

The limit matters because the process can end, but the employee's workplace life does not.

The federal arbitration law would not protect a restriction that extends beyond the arbitration.

The decision called a ban on disclosing that an arbitration exists a perpetual gag order.

That characterization is the drafting warning.

The 2026 decision did not make every confidentiality rule lawful.

It made the scope of the rule the issue.

The same policy can be defensible in one place and overbroad in another.

A ban on saying arbitration happened is the weak point

Before the 2026 decision, the NLRB had struck down similar policies for blocking class and collective actions, interfering with access to the NLRB, and imposing overbroad confidentiality.

The 2026 decision narrows that history.

The difference is narrow but real: the substance can stay private, while the existence of the case can be said.

That distinction is easy to miss in a clause that says employees may not discuss any arbitration or any proceeding.

It is also easy to miss when the policy uses confidential without defining what is confidential.

Review the policy for every sentence that uses confidential, exist, disclose, charge, or file.

The weak language is usually the sentence that goes beyond the case and limits the employee's ability to say a case exists.

That sentence does not need to be softened. It needs to be cut.

If a clause says all communications about the arbitration are confidential, it likely reaches the existence.

If a clause says the content and outcome are confidential, it is closer to the accepted rule.

Put the permitted disclosure in affirmative language, such as a statement that employees may say an arbitration exists. Affirmative language is clearer than a silence rule that leaves the point to inference.

The edits that keep the clause defensible

The decision accepted a limit between what happened inside the process and the fact that the process happened.

The arbitration agreement savings clause is what keeps the policy from reading as a restriction on government filings.

Use the list below to check the clause.

The first two edits track the holding, and the third keeps the policy from interfering with charge filing.

1. Keep confidentiality limited to the content and outcome of the arbitration.
2. Delete any language that bans disclosure that an arbitration exists.
3. Add a savings clause preserving the right to file charges with the NLRB and the EEOC.

Read with a savings clause, the majority found the policy did not interfere with employees' ability to enforce rights through NLRB processes.

Under the Stericycle standard, the NLRB's test for whether a work rule chills protected activity, the charge-filing language would lead a reasonable employee to understand that filing NLRB charges remained available.

The standard matters.

A clause that only says employees can arbitrate may not be enough.

The charge-filing language is the part that satisfies the test.

If your clause already has a savings clause, check that it names charge filing, not just the right to arbitrate.

If it does not, add one before the next signature cycle.

The savings clause should be conspicuous, not buried in a footnote.

It should use charge-filing language, not only a general statement that employees retain all rights.

A reasonable employee is the test, so write for the person who signs the policy, not the lawyer who drafted it.

Do not add a separate confidentiality agreement that re-imposes the banned existence ban.

If the policy is signed by new hires, update the template before the next offer. If it is an existing policy, issue a short revision notice.