Employment Arbitration after the Revolution

Abstract

This invited contribution to the DePaul Law Review’s Clifford Symposium on Tort Law and Social Policy examines 5,883 cases initiated by employees in the American Arbitration Association between July 1, 2009 and December 31, 2013. Its goal is to shed light on the state of employment arbitration after the U.S. Supreme Court’s watershed opinions in Rent-A-Center West, Inc. v. Jackson and AT&T Mobility LLC v. Concepcion.

It finds that employees have filed fewer cases since Concepcion. It also determines that employees “win” — defined as recovering an award of $1 or more — 18% of matters. Finally, it performs logit regressions to investigate the impact of several variables on case outcomes. It concludes that employees are less likely to be victorious when they face a “high-level” or “super” repeat playing employer. Conversely, fact that a case involves a “repeat pairing” — an employer that has appeared at least once before the same arbitrator — does not influence win rates.

Keywords: arbitration, FAA, employment, Gilmer, Rent-A-Center v. Jackson, AT&T v. Concepcion, empirical, class action, class arbitration, repeat player