Making Employment Arbitration Fair and Accessible

Mandatory arbitration agreements require employees, as a condition of employment, to agree to arbitrate all employment disputes instead of filing court suits. The Supreme Court has approved such agreements but many labor experts oppose them. The U.S. House of Representatives has passed a bill to prohibit pre-dispute agreements, the common form for mandatory arbitrations. This article argues that the House bill would have the practical effect of virtually eliminating employment arbitration. Instead, proposals are presented for either legislative or judicial steps to ensure that employment arbitration is fair and accessible. Requirements would include: (1) voluntary agreements on the part of all parties; (2) an arbitrator knowledgeable in the law, jointly selected by the parties; (3) a representative of the employee’s choice; (4) no waiver of class actions; (5) all arbitration costs payable by the employer except for a modest filing fee; (6) simple but adequate discovery; (7) due process in the hearing, with cross-examination; (8) public law followed when applicable; (9) all remedies that are available under law; (10) a written award with reasons; (11) limited judicial review; and (12) incorporation of “unconscionability” as an element of federal arbitration law