Mandatory Employment Arbitration: Keeping it Fair, Keeping it Lawful

President Obama\u27s election and the Democrats\u27 takeover of Congress, including what was their theoretically filibuster-proof majority in the Senate, have encouraged organized labor and other traditional Democratic supporters to make a vigorous move for some long-desired legislation. Most attention has focused on the Employee Free Choice Act (EFCA). As initially proposed, the EFCA would enable unions to get bargaining rights through signed authorization cards rather than a secret-ballot election, and would provide for the arbitration of first-contract terms if negotiations fail to produce an agreement after four months. The EFCA would apply to the potentially organizable private-sector working population; at their height, unions represented about 35% of that group. This Essay will deal, however, not with the EFCA but with another controversial, if less publicized, proposal: the Arbitration Fairness Act (AFA). The AFA would have a much broader impact than the EFCA. It could affect the whole of the nonunion work force, currently about 92.8% of private-sector employment. It would amend the Federal Arbitration Act (FAA) to prohibit most pre-dispute agreements to arbitrate employment claims or civil rights claims. Some background is necessary to understand what is at stake