Mandatory Arbitration Agreements Research Articles

Access to Justice for Gig Workers: Contrasting Answers from Canadian and American Courts

With the introduction of digital platforms in the Canadian labour law’s landscape comes an increased used of agreements imposing arbitration as a dispute resolution mechanism. To challenge their classification as independent workers and gain employment standards acts’ protection, gig workers therefore need to submit their disputes to a private proceeding, often located outside Canada. It is in this context that the Ontario Court of Appeal’s decision to invalidate the arbitration clause in Hellerv Uber Technologies Inc. must be read. Having granted leave for appeal, will the Supreme Court of Canada follow in the footsteps of American law and allow mandatory arbitration agreements to impede collective actions challenging the misclassification of gig workers? Our study of the Ontarian and American decisions regarding the validity of mandatory arbitration agreements between Uber and its drivers brings to light the determining impact of the approach chosen by courts.

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

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.

How Do Organizational Environments and Mandatory Arbitration Shape Employment Attorney Case Selection? Evidence from an Experimental Vignette

Using a novel experimental vignette design, this study shows how firm adoption of equal employment opportunity (EEO) policies, internal dispute resolution procedures, occupational segregation, and use of mandatory arbitration agreements affect employment attorney perceptions of employment discrimination claims. Findings reveal the organizational environment of a claim can signal compliance with antidiscrimination law and the use of mandatory arbitration reduces the expected value of a claim and willingness to accept it for representation. These findings contribute to the understanding of antidiscrimination law as a social system by showing organizational environments and mandatory arbitration clauses predict attorney case assessment.

No Day In Court: Access to Justice and the Politics of Judicial Retrenchment. By Sarah Staszak. New York: Oxford University Press, 2015. 320 pp. $99.00 cloth.

No Day In Court: Access to Justice and the Politics of Judicial Retrenchment. By Sarah Staszak. New York: Oxford University Press, 2015. 320 pp. $99.00 cloth.Sarah Staszak's No Day In Court is an ambitious and comprehensive treatment of the politics of securing access to courts and justice. Staszak's general claim is that wide array of rules, procedures, and 5) operate as subterranean mechanisms 9) that constrict access to courts for civil litigants that seek their day in court as part of the rights revolution. This phenomenon, or retrenchment (p. 5), is theoretically explained by a confluence of multiple coalitions, promoting different goals and interests, which have changed over 6). The key variables that elucidate judicial retrenchment are insularity, ideology and temporality 10); that is, different actors and interests constrict access by autonomously maximizing their discretion within the institutional framework of the federal judiciary to make the of the game (pp. 5, 213) that advance their political goals in any given historical time period.Staszak adopts a historical institutional approach to test her theory of judicial retrenchment within the context of four case studies that show that access to courts is restricted by imposing fundamental changes to the decision-makers, rules, venues, and incentives that comprise adjudication 34). For Staszak, the case studies are illustrative of different strategies that are used by a variety of institutional actors, coalitions and interests to restrict court access over time 29). After clearly outlining her theory in chapter two, in the next chapter the author details the dramatic shift toward the use of alternative dispute resolution (ADR) and mandatory arbitration agreements, a process that has removed federal judges from deciding contested cases involving consumer protection, employment contract, or student loan disputes. Chapter four then demonstrates how different legal and political interests advocated for rule changes that culminated in the Rules Enabling Act of 1934 and the 1938 Federal Rules of Civil Procedure-each are significant because they provide the foundation for the set of procedural rules that govern civil adjudications. As with the rise of ADR, the creation of procedural rules were born out of initial reform efforts that were designed to facilitate access but ultimately worked to deny it in the ensuing post-New Deal institutional struggle between the legislative and judicial departments' effort to control the rulemaking process, especially after the 1970s. In both chapters, the author effectively argues that while the anti-litigation posture of the Supreme Court in recent decades has contributed mightily to retrenchment, the phenomenon itself can only be explained by the convergence of a multiplicity of ideological (and sometimes apolitical) interests that is often bipartisan in nature in any given political time. …

Employment Arbitration Reform: Preserving the Right to Class Proceedings in Workplace Disputes

The recent judicial enforcement of class waivers in arbitration agreements has generated ample debate over the exact reach of these decisions and their effects on the future of collective action for consumers and employees. In AT&T Mobility v. Concepcion, a 5-4 majority of the Supreme Court majority held that the Federal Arbitration Act (FAA) preempted state laws prohibiting companies from incorporating class action waivers into arbitration agreements. The Court upheld such waivers on the grounds that they are consistent with the language and underlying purpose of the FAA. Most courts across the country have since reinforced the strong federal policy favoring arbitration. This, in turn, has made it more difficult for employees—most of whom do not enjoy the benefit of union representation and must therefore arbitrate their claims as individuals—from engaging in class proceedings. Faced with this dire judicial landscape, employees must turn to Congress to limit the scope of compulsory arbitration and secure recognition of the right to class proceedings. This Note advocates for legislative reform of federal arbitration law. Specifically, it argues for an amendment to the FAA that invalidates class waivers in mandatory arbitration agreements and applies only in employment disputes. Such a reform would help preserve important employee protections under federal labor law and would allow nonunion workers, in particular, to fully exercise their fundamental right to collective action.

Arbitration and Access to Justice: Economic Analysis

Equal Access is one of the most appealing and least contentious regulatory techniques in law’s repertoire. It aspires to give people even opportunity to utilize certain primary goods, and it does so by assuring openness — that access to these goods is not distorted by wealth or by privilege. But equal access often fails, because access and its benefits are deployed disproportionately by elites, yet paid for directly or indirectly by weaker groups. This article demonstrates the unintended and regressive cross-subsidy created by policies of access to information, compensation, insurance, and accommodations. It then examines the debate over access to courts, and the effect of mandatory arbitration agreements that limit such access. It demonstrates that access to courts is a benefit to the elite and of little value to weak consumers. Finally, it considers the effect of arbitration clauses on class actions, and whether weak consumers are potentially the indirect beneficiaries of class action litigation. This argument has theoretical merit, but it, too, is limited in ways that are often unappreciated.

Giving Arbitration Some Credit: The Enforceability of Arbitration Clauses Under the Credit Repair Organizations Act

This Student Note addresses the unresolved question of the enforceability of arbitration agreements under the Credit Repair Organizations Act. While the Third and Eleventh Circuits have enforced such agreements, finding that the CROA does not preclude arbitration, the Ninth Circuit has refused to enforce these arbitration clauses, finding that the CROA entitles plaintiffs to a judicial forum. This conflict arises against a backdrop of debate over mandatory arbitration agreements between consumers and businesses. Scholars and legislators alike have argued that such agreements are unjust. A refusal to enforce such agreements, however, would fly in the face of the Supreme Court’s clear mandate to lower courts to enforce arbitration agreements. This Note examines the current circuit split over the enforceability of arbitration agreements under the Credit Repair Organizations Act in the context of both consumer protection law and relevant arbitration jurisprudence. Part I discusses the development of consumer protection law and the enactment of the Credit Repair Organizations Act, and examines the statute in detail. Part II describes the history and procedure of arbitration and examines the development of the Supreme Court’s policy regarding arbitration. Part III then analyzes the circuit split over the enforceability of arbitration agreements under the Credit Repair Organizations Act and the arguments for and against enforcing mandatory consumer arbitration clauses. Part IV advocates for the enforcement of such arbitration agreements, presenting several reasons why consumers will not be harmed by the enforcement of such agreements. Finally, Part IV proposes a simple solution to the problem: the elimination of credit repair organizations.

Between Rights and Contract: Arbitration Agreements and Non-Compete Covenants as a Hybrid Form of Employment Law

The employment relationship is governed largely by contract, but with a heavy overlay of “rights”: minimum terms and individual rights that are established by external law and are typically nonwaivable. But some terms of employment are governed neither by ordinary contract nor by ordinary rights, nor even by ordinary waivable rights. Both of the two most controversial contractual instruments in employment law today—non-compete covenants and mandatory arbitration agreements—take the form of written contracts; both waive important employee rights (the right to compete postemployment, the right to litigate future claims); and both are subject to substantive criteria of validity that are set by external law. Both bodies of law may be usefully described as recognizing “conditionally waivable” rights. This Article aims first to show structural parallels between non-compete covenants and mandatory arbitration agreements that place them at a distinct intermediate point along the spectrum between nonwaivable rights and ordinary contract. Second, it seeks to uncover a common logic underlying the law’s choice of this particular hybrid of rights and contract. The linchpin of that common logic lies in the threat that an unregulated waiver of one right (the right to compete or to litigate future claims) poses to adjacent employee rights that the law deems nonwaivable. Third, this Article deploys that underlying logic to offer a critical assessment of the law governing non-competes and arbitration agreements. Finally, this Article tentatively explores the broader potential usefulness of conditional waivability as a way of regulating some terms of employment. The intriguing potential of conditional waivability lies in its injection of some of the virtues of contract—especially flexibility and variability in the face of widely divergent and changing circumstances—into the pursuit of public goals and the realization of rights in the workplace.

Between Rights and Contract: Arbitration Agreements and Non-Compete Covenants as a Hybrid Form of Employment Law

The employment relationship is governed largely by contract, but with a heavy overlay of rights: minimum terms and individual rights that are established by external law and typically non-waivable. But some terms of employment are governed neither by ordinary contract nor by ordinary rights, nor even by ordinary waivable rights. Consider the two most controversial instruments in employment law today: non-compete covenants (NCCs) and mandatory arbitration agreements (MAAs). Both take the form of written contracts that waive important employee rights (the right to compete post-employment, the right to litigate future claims); both are subject to substantive criteria of validity that are set by external law. Both bodies of law may be usefully described as recognizing conditionally waivable rights. This paper aims first to show structural parallels between NCCs and MAAs that place them at a distinct intermediate point along the spectrum between non-waivable rights and ordinary contract that I call conditional waivability. Second, it seeks to uncover a common logic underlying the law's choice of this particular hybrid of rights and contract. The linchpin of that common logic lies in the threat that unregulated waiver of one right (the right to compete or to litigate future claims) poses to an adjacent employee right that the law deems non-waivable. Third, the paper deploys that underlying logic to offer a critical assessment of the law governing NCCs and MAAs. Finally, the paper tentatively explores the broader potential usefulness of conditional waivability as a way of regulating some terms of employment. The intriguing potential of conditional waivability lies in its injection of some of the virtues of contract - especially flexibility and variability in the face of widely divergent and changing circumstances - into the pursuit of public goals and the realization of rights in the workplace.

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

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.

Mandatory Arbitration Agreements: Do They Create More Litigation Than They Avoid?

Mandatory Arbitration Agreements: Do They Create More Litigation Than They Avoid?

Achieving Knowing and Voluntary Consent in Pre-Dispute Mandatory Arbitration Agreements at the Contracting Stage of Employment

Achieving Knowing and Voluntary Consent in Pre-Dispute Mandatory Arbitration Agreements at the Contracting Stage of Employment

Achieving Knowing and Voluntary Consent in Pre-Dispute Mandatory Arbitration Agreements at the Contracting Stage of Employment

Achieving Knowing and Voluntary Consent in Pre-Dispute Mandatory Arbitration Agreements at the Contracting Stage of Employment

The Future of ADR in the Workplace

The U.S. Supreme Court recently issued another decision endorsing the use of mandatory arbitration agreements in the workplace as a means of alternative dispute resolution of employmentrelated claims. Given the Supreme Court’s decision in Circuit City Stores, Inc. v. Adams, this article reviews the status of mandatory arbitration agreements as they apply to employment claims, in particular, claims of employment discrimination. For years, the Federal Arbitration Act has been at the center of continued controversy over employment contracts requiring arbitration of claims arising out of the employment relationship. This article focuses on the state of the law regarding the use of compulsory/mandatory arbitration agreements for employment-related disputes and reviews studies and empirical information about the cost benefit of arbitration to resolve employment-related disputes. The article includes some practical suggestions for employers who wish to consider using alternative dispute mechanisms and compulsory/mandatory arbitration.

Arbitration Agreements in Health Care: Myths and Reality

This comment, offered by one well-positioned respondent to the study on which this article is based, reflects the widespread belief that alternative dispute resolution methods, particularly mandatory binding arbitration agreements, have become the rule in health care delivery.' This apparent trend has spurred vigorous debate about the merits of using such agreements. Our study is an effort to ascertain how widespread mandatory arbitration agreements between health plans and providers and their enrollees and patients really are, to assess how decisions regarding their use are made, and to evaluate the prospects of their future use. We found, contrary to popular belief, that arbitration agreements are not used widely in the medical setting, and, where they are used, it is typically because organizational policy explicitly directs their use.