Disarming Employees: How American Employers are Using Mandatory Arbitration to Deprive Workers of Legal Protection

Abstract

Employers’ imposition of mandatory arbitration constricts employees’ access to justice. The twenty percent of the American workforce covered by mandatory arbitration clauses file just 2,000 arbitration claims annually, a miniscule number even compared to the small number of employees who litigate claims individually or as part of a class action. Exploring how mandatory arbitration prevents employees from enforcing their rights the Article shows employees covered by mandatory arbitration clauses (1) win far less frequently and far less money than employees who litigate; (2) have a harder time obtaining legal representation; (3) are often precluded from participating in class, collective or sometimes even group claims; and (4) do not fare well pro se in arbitration. Noting employers’ use of mandatory arbitration is likely increasing, the Article urges Congress to pass the Arbitration Fairness Act both to protect individual employees and also to ensure employment laws are enforced.

Keywords: employment, arbitration