Employee Voice in Arbitration

21 Pages Posted: 5 Apr 2019

See all articles by Ann C. Hodges

Ann C. Hodges

University of Richmond - School of Law

Date Written: November 2018

Abstract

The Supreme Court’s 2018 decision in Epic Systems v. Lewis allows employers to force employees to agree to individual arbitration of any claims against the employer, removing their ability to bring class and collective actions. These unilaterally imposed arbitration agreements deprive employees of any voice in this important term of employment.

If arbitration is to serve its intended function of a mutually agreeable forum to resolve disputes, Congress should require employers who desire to use arbitration to negotiate the terms of the agreement with a representative of their affected employees. Such a requirement would reduce some of the adverse effects of employment arbitration, making it more like labor arbitration, which has functioned as an effective dispute resolution mechanism under collective bargaining agreements for many years.

A negotiation requirement would insure that employees have notice of the arbitration provision and input into its terms. The National Labor Relations Board could use its existing election machinery to facilitate employee choice of representative which could be an individual, a group of employees, an attorney, a labor union, or another workers’ rights organization. In addition to providing employee voice, requiring negotiation would discourage arbitration where the employer’s only goal is to reduce employee rights and might also spur employee participation in the workplace and the community.

Keywords: arbitration, class action, collective action, employee voice, negotiation, employee representative

Suggested Citation

Hodges, Ann C., Employee Voice in Arbitration (November 2018). Employee Rights and Employment Policy Journal, Vol. 22, No. 2, 2018. Available at SSRN: https://ssrn.com/abstract=3352240

Ann C. Hodges (Contact Author)

University of Richmond - School of Law ( email )

28 Westhampton Way
Richmond, VA 23173
United States
804-289-8909 (Phone)
804-287-6558 (Fax)

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