With over 175 participants, The Institute, in collaboration with the Berkeley Journal of Employment and Labor Law (BJELL), brought together a diverse range of experts on forced arbitration, including practitioners, law professors, social science researchers, and government agencies to engage in a thoughtful dialogue and help raise awareness about forced arbitration of workplace disputes.
Ending forced arbitration of employment disputes is The Institute's top public policy priority. Forced arbitration is a one-sided proposition by employers that requires employees to waive their right to vindicate their statutory workplace protections in court as a condition of employment. With escalating and alarming frequency, employers impose forced arbitration of workplace disputes on their employees without their knowledge or consent. Forced arbitration provisions are hidden in job applications, employee handbooks, employment contracts, pension plans, pay stubs, and company-wide emails. U.S. Supreme Court decisions upholding forced arbitration provisions under the Federal Arbitration Act (FAA) have created additional hurdles for employees seeking justice when their workplace rights are violated. The Symposium connected experts and practitioners in the field to discuss how to end forced arbitration of employment disputes and to ensure continued public enforcement of our worker protection laws.
The Symposium's opening panels described how private forced arbitration fundamentally differs from public enforcement of our laws through the civil justice system. Former NELA President Joseph D. Garrison and Professor Imre Szalai of Loyola University New Orleans School of Law set the stage for the day in the Symposium's first presentation, "Overview & History: The Alternate Universe Of Forced Arbitration." Discussing the historical context of the FAA, Professor Szalai described how forced arbitration was never meant to apply to employment disputes and how "flawed" Supreme Court decisions changed the meaning of the statute and that "[the] original drafters of the FAA would not recognize the statute as it is construed today."
In a session on "Disarming Employees? Examining Case Outcomes & Legal Representation In Employment Arbitration," social science researchers from Cornell University's School of Industrial and Labor Relations presented new research on forced arbitration in the workplace. Ph.D. Candidate Mark Gough released for the first time the results of his survey of members of NELA and its state and local Affiliates regarding their experiences with forced arbitration. Mr. Gough concluded that "arbitration has an undeserved reputation for accessibility." In a statistical comparison between forced arbitration and litigation (i.e., resolution through the courts) of employment disputes, he found that outcomes in arbitration are "starkly inferior" to litigation. The survey results showed that employees are nearly 50 percent less likely to win in arbitration than in litigation, and when employees win after being forced to arbitrate, their awards are typically half the size of what they would have received in court. Echoing Mr. Gough's findings, Professor Alexander J.S. Colvin discussed how the survey data show that forced arbitration "disrupt[s] existing mechanisms for enforcing employment rights" because low and middle income employees have a more difficult time securing legal representation in arbitration than they do in litigation.
Other speakers underscored the need for employee rights advocates to lead the charge in ending forced arbitration of workplace disputes. Former Secretary of Labor Robert B. Reich inspired the audience to advocate for change in Washington during his keynote speech, "Why The American Worker Is Losing Ground." Additional presentations addressed the changing jurisprudence under the FAA and ways that employee rights advocates could challenge this growing body of law. Professor Michael Z. Green of Texas A&M Law School explored using the enforcement powers of federal government agencies, such as the U.S. Equal Employment Opportunity Commission (EEOC), to support employees' efforts to resist arbitration as a form of unlawful retaliation. Professor Catherine Fisk of the University of California Irvine School of Law analyzed the developing case law supporting the National Labor Relations Board's decision that class action waivers are a violation of employees' rights to protected concerted activity under the National Labor Relations Act. EEOC Commissioner Jenny R. Yang and EEOC General Counsel P. David Lopez concluded the Symposium with a discussion of forced arbitration's impact on the agency's Strategic Enforcement Plan, Preserving Access to the Legal System. Commissioner Yang encouraged attendees to work with the EEOC in advancing new legal challenges to forced arbitration of workplace disputes.
The Symposium was an important springboard for scholarship on the issue of forced arbitration in the workplace. Articles written by the panelists will be published in the next edition of BJELL. Written materials prepared for the Symposium as well as audio recordings of the presentations, and a video recording of Professor Reich's keynote address, are available online at http://bjell.weebly.com/.