Imposing Injustice: The Prospect of Mandatory Arbitration for Guestworkers

Abstract

Legislators and employers have taken steps in recent years to expand guestworker visa programs, programs that allow employers to recruit and hire foreign workers to temporarily labor in the United States. At the same time, there have been efforts to reduce the role of public law in guestworkers’ lives and limit their access to courts. Some legislators proposing reforms to guestworker visa programs have endorsed employer-led efforts to prevent judicial oversight of guestworkers’ claims and mandate private arbitration instead. Outside of Congress, recent Supreme Court decisions confirm the Court’s broad approval of mandatory arbitration as an acceptable alternative to litigation and lend support to employer efforts to privatize the adjudication of guestworkers’ claims.

This article predicts that converging trends in employment practices and dispute resolution processes will create a growing underclass of guestworkers and undermine workplace standards for all workers. The article first evaluates low-wage guestworkers’ unique vulnerability and the abuses they commonly experience. Next, the article assesses the status of mandatory arbitration in employment relationships, challenges commonly held myths about mandatory arbitration, and explores the potential consequences of the increased use of mandatory arbitration for low-wage guestworkers and U.S. workplaces.

The article concludes that mandatory arbitration applied to guestworkers would represent the harmful withdrawal of public law from a group of workers to whom the government should give public protection. This conclusion is grounded, in part, in evidence that private mandatory arbitration would not be a meaningful alternative to litigation for low-wage guestworkers. Rather, it would magnify guestworkers’ vulnerability and threaten to adversely impact their working conditions while also unfairly disadvantaging U.S. workers and law- abiding employers. Therefore, this article warns against the forced relegation of employer-guestworker disputes to arbitration. Instead, it proposes a legislative strategy for protecting guestworkers’ substantive and procedural rights.

Keywords: arbitration, alternative dispute resolution, guestworker, guest worker, employment law, low-wage workers, workplace rights, access to justice, mandatory arbitration

JEL Classification: H2A, H2B, J1