From Supreme Court to Shopfloor: Mandatory Arbitration and the Reconfiguration of Workplace Dispute Resolution

[Excerpt] In a series of court battles during the 1990s, employers successfully defended the use of mandatory employment arbitration against challenges that the procedures inherently undermined the statutory rights of employees. Efforts to introduce legislation in Congress aimed at reversing the Gilmer decision were unsuccessful. In 2001, the Supreme Court reaffirmed its acceptance of mandatory arbitration to resolve employment disputes in Circuit City Stores, Inc. v. Adams. However, some courts have been willing to strike down arbitration procedures that contain particularly egregious violations of due process. For example, courts have refused to enforce arbitration agreements that restrict employee damage awards, require employees to pay half of the arbitration costs (which may amount to thousands of dollars or that impose one-sided obligations to arbitrate), or that allow the employer access to the courts while the employee is forced to arbitrate. In the vast majority of cases, however, the courts have enforced mandatory arbitration agreements where the procedures do not include any egregiously one-sided provisions