Sign or Else. Employment Arbitration in the Wake of an Epic Decision

Abstract

Mandatory arbitration agreements have become a common feature of employment in the United States, with workers compelled, as a condition of employment, go give up their rights of access to the courts. Even sexual harassment claims can be forced into arbitration, an especially jarring fact given the #MeToo movement. Employers are likely to feel even more empowered by the 2018 U.S. Supreme Court 5-4 decision in Epic Systems v. Lewis, in which Justice Gorsuch ruled that employees can be forced to arbitrate claims on an individual, and not collective, basis, notwithstanding a 2012 National Labor Relations Board ruling to the contrary. Although this was viewed as another judicial win for the business community, two recent 11th Circuit decisions reveal that even arbitration still carries risks and that businesses might want to be careful about what they ask for.