Opposing Excessive Use of Employer Bargaining Power in Mandatory Arbitration Agreements Through Collective Employee Actions

Abstract

In this Article, I focus on how employees can respond and address excessive bargaining power issues when employers require individual employees to agree to arbitrate employment disputes as a condition of employment. My thesis is that individual employees can and should seek self-help through collective action to level the playing field for bargaining about arbitration. Furthermore, I contend that the best collective action would be for unions to play a major role in how individual employee disputes, including the various statutory and tortbased exceptions to the employment-at-will doctrine, are negotiated and resolved in arbitration. Section II of this Article reviews the Supreme Court's analysis of mandatory arbitration agreements involving statutory employment discrimination claims and its lack of concern for bargaining power in enforcing these agreements. Section III addresses the underlying concerns that led employers to excess when seeking mandatory arbitration agreements, and why that response now appears so insidious to many employee advocates. Section IV offers a solution to the dilemma of bargaining power excess engaged in by employers through mandatory arbitration-the use of collective employee activity with the assistance of unions. Finally, this Article concludes that creative uses of unions as assistants to groups of employees can chill employer excess and ultimately level the bargaining playing field with respect to decisions to arbitrate employment disputes.