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Mandatory Arbitration in Employment Agreements Under Fire

By Holly Wheeler & Sarah S. Healey on March 14, 2019
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Recently, Democratic federal legislators proposed a bill to bar companies from requiring employees to sign mandatory arbitration agreements and also from preventing employees from bringing class actions.

Proposed Bill

The proposed bill, the Forced Arbitration Injustice Repeal Act (“FAIR Act”), sponsored by Connecticut Senator Richard Blumenthal and New York Congressman Jerrold Nadler, would ban mandatory arbitration in employment agreements, prohibiting employees from taking their claims to court.  It would also bar agreements that prevent workers from bringing class action claims against their employers.

Reactions to the Epic Systems v. Lewis Decision

This past summer, the United States Supreme Court ruled in an appropriately named case, Epic Systems v. Lewis, that mandatory arbitrations provisions, as well as waiver of class action claims in employment agreements, were enforceable.  Proponents for employees regard the Epic case as a blow to employees’ rights by preventing them from going public with claims, having their day in court and obtaining potentially larger jury awards, among other reasons.  In the midst of the recent #MeToo movement and pressure by employees to end mandatory arbitration at high profile companies such as Google and Vox Media, there is a concern that allowing employers to keep claims private and separate will in turn sweep legitimate claims under the rug.  Those who favor the Epic decision believe that arbitration provides a more civilized way of dealing with employment disputes because arbitration tends to be faster, cheaper, less obtrusive and private.  The FAIR Act would reverse the Supreme Court’s ruling in Epic.

Future Path of the FAIR Act

While similar bills have been proposed in recent years without moving forward, the FAIR Act has more support in the House of Representatives than in it has had in the past.  However, it will face more opposition in the Republican-controlled Senate and it is probably unlikely that President Trump would sign a bill reversing a decision written by his first Supreme Court appointee.

Stay tuned as we keep you updated with the issues that affect you!

Photo of Holly Wheeler Holly Wheeler

Holly G. Wheeler is an associate in Carmody Torrance Sandak & Hennessey’s Business Services and Labor and Employment groups. Holly’s practice focuses primarily on assisting businesses in all aspects of their operations including entity formation, mergers and acquisitions, and corporate governance.

Read more about Holly WheelerEmail
Photo of Sarah S. Healey Sarah S. Healey

Sarah S. Healey has represented clients in a range of matters involving, for example, claims of employment discrimination, harassment and retaliation, wrongful discharge, breach of contract and fiduciary duty, defamation, unfair trade practices, and misappropriation of trade secrets in federal and state court.

Sarah S. Healey has represented clients in a range of matters involving, for example, claims of employment discrimination, harassment and retaliation, wrongful discharge, breach of contract and fiduciary duty, defamation, unfair trade practices, and misappropriation of trade secrets in federal and state court. Sarah also regularly defends employers before administrative agencies such as the Equal Employment Opportunity Commission and the Commission on Human Rights and Opportunities. Sarah frequently presents on current labor and employment law issues. She also conducts management training for all employers on topics including harassment prevention and performance management, leaves of absence, accommodating employees with disabilities, and wag and hour compliance.

Read more about Sarah S. HealeyEmail
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  • Posted in:
    Employment & Labor
  • Blog:
    Carmody @ Work
  • Organization:
    Carmody Torrance Sandak & Hennessey LLP
  • Article: View Original Source

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