Ending Forced Arbitration In The Workplace

Since its inception in 2008, The Institute has been working to end forced arbitration of workplace disputes, one of the most significant obstacles to the protection, enforcement, and vindication of employee rights.

Forced arbitration denies America’s workers access to our nation’s civil justice system by requiring them to give up their rights to resolve their claims in court when they believe they have been illegally treated in the workplace.

Forced arbitration is anathema to our open justice system because it occurs in secret, private tribunals lacking important legal safeguards, such as the right to appeal the arbitrator’s decision, public access to arbitration proceedings that expose patterns of employer misconduct, and other guarantees ensuring a fair process that exist in a court of law. As a result, employers are shielded from public accountability for violating workers’ employment and civil rights.

Taking advantage of their superior power and the fact that most people need to work for a living, employers foist forced arbitration on workers as a condition of getting or keeping a job. Forced arbitration clauses are often buried in the fine print of employment applications, contracts, and handbooks.

Employers characterize forced arbitration as an “agreement” or a “choice” by their workers, but the reality is that most workers have no power to negotiate the terms of “take-it-or-leave-it” forced arbitration clauses since they need to work to support themselves and their families.

Workers who are subject to such provisions almost never have any recollection of them, and if they do, it is unlikely that they understand the ramifications of “agreeing” to them. One federal judge keenly observed that “it is of little use that an employee can read and review an agreement if signing an agreement is mandatory and non-negotiable.”

Arbitration—when it is knowingly and voluntarily agreed to, when the employee can weigh the relative merits of going to court or arbitration, when the arbitrator presiding over the dispute is truly neutral, and when adequate safeguards of fairness and due process govern the proceedings—may be a legitimate option for resolving workplace disputes. Forced arbitration, however, lacks many of these fundamental elements of fairness.

One of The Institute’s early and noteworthy achievements was coining the term “forced arbitration” in 2009, which was found to resonate more with people than “mandatory arbitration” and “binding arbitration.” Today, “forced arbitration” is widely used by the public, Members of Congress, judges, academics, advocacy groups, and the press.

FACT SHEETS

Forced Arbitration Enables Sexual Harassment At Work
By requiring workers to arbitrate behind closed doors, cases of sexual harassment remain secret, and serial harassers can escape accountability. Learn How Forced Arbitration Keeps Workplace Sexual Harassment A Secret.

Forced Arbitration Hides Rampant Wage Theft
By suppressing claims, forced arbitration lets wage thieves steal from our nation’s most vulnerable workers with impunity. Learn How Forced Arbitration Gives Dishonest Employers A License To Steal.

Forced Arbitration Allows Big Companies to Exploit Workers
By demanding that prospective and current employees surrender their rights in order to get or keep a job, powerful employers are able to free to back workers into a corner when they have suffered harm on the job. Learn How Forced Arbitration Denies the “Little Guy” Access to Justice.

Forced Arbitration Works Against America’s Largest Source of Employment – Small Businesses
Large corporations use forced arbitration to prevent the small companies they deal with from resolving their grievances in court. Increasingly, those with claims against corporate actors must instead resolve their disputes through private arbitration proceedings that are designed to benefit the offending corporation. Learn How Forced Arbitration Disempowers Small Businesses Against Corporate Wrongdoing .

Forced Arbitration Denies Workers Their Civil Rights
Without access to the courts, our civil rights protections become meaningless. Yet, because of forced arbitration, millions of workers who suffer race, national origin, or other forms of discrimination at work are left with no meaningful recourse. Learn How Forced Arbitration Erodes Civil Rights Protections & Enables Workplace Discrimination.

FROM OUR BLOG

Interactive Timeline Series Traces How The U.S. Supreme Court Forced Arbitration On America’s Workers

The Institute Publishes New Report Exposing Widespread Use Of Arbitration Clauses In Employment Contracts

Class And Collective Action Bans Help Keep Low-Wage Workers Trapped In Poverty

Horton Comes To A Head: U.S. Supreme Court Poised To Resolve Conflict Regarding Workers’ Rights To Act Collectively

PUBLICATIONS AND RESOURCES

Workers Beware: Forced Arbitration Can Happen To You

“Workers Beware” is intended to provide information about employers that impose forced arbitration on their employees for the benefit of advocates, researchers, policymakers, and—most of all—workers.

The Institute Publishes “Taking ‘Forced’ Out Of Arbitration: How Forced Arbitration Harms America’s Workers”

The Institute is pleased to announce the publication of Taking “Forced” Out Of Arbitration: How Forced Arbitration Harms America’s Workers. Its purpose is to inform and influence a broad audience, including public officials, policy makers, the press, and members of the general public, about forced arbitration of workplace disputes and why it should be abolished. Special efforts are being made to reach immigrant, low wage, and other workers particularly vulnerable to unlawful employment practices. The pamphlet has been translated into Chinese and Spanish.

National Study of Public Attitudes on Forced Arbitration
By The Employee Rights Advocacy Institute For Law & Policy and Public Citizen (2009)

In April 2009, The Employee Rights Advocacy Institute For Law & Policy (The Institute), in collaboration with Public Citizen, released a study based on a major national survey on forced arbitration of employment and consumer claims conducted by Lake Research Partners, one of the most respected national public opinion and political strategy research firms in the country. This important research was made possible by a grant from The Public Welfare Foundation.

Forced Arbitration In The Workplace: A Symposium
Hosted by The Employee Rights Advocacy Institute For Law & Policy and Berkeley Journal of Employment and Labor Law (2014)

Employee rights advocates, law students, academics, arbitrators, and judges joined The Institute for “Forced Arbitration In The Workplace: A Symposium” at the University of California, Berkeley School of Law (Boalt Hall) on Thursday, February 27, 2014. 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.

Forced Arbitration In The Workplace: A Symposium (Law Review Issue), Berkeley Journal of Employment and Labor Law (2014)

The law review articles in this issue represent a renewed effort among the legal community to strengthen the scholarship on forced arbitration of workplace disputes and to ensure fairness for workers. Each article contributes to a better understanding of forced arbitration in the workplace and its impact on workers’ ability to enforce their statutory rights.

A Metamorphosis: How Forced Arbitration Arrived In The Workplace
By Carmen Comsti, 2014–2015 Paul H. Tobias Attorney Fellow (2014)

This law review article, published in the Berkeley Journal of Employment and Labor Law (2014), describes the shift from public enforcement of workplace laws to private forced arbitration. Part I of the article sets the stage by providing a brief overview of the distinctions between voluntary arbitration and forced arbitration. Part II describes the elevation of the Federal Arbitration Act (FAA) to a “super-statute” and the limited scope of judicial review of forced arbitration provisions and awards. Part III discusses how the courts have misapplied traditional labor law jurisprudence to justify the expansion of forced arbitration of employment disputes under the FAA. Finally, Part IV explores how forced arbitration has eroded the statutory purposes and protections of our nation’s workplace laws, focusing on the Fair Labor Standards Act and Title VII of the Civil Rights Act of 1964. These developments have transformed the employee-employer relationship from one that is regulated by worker protection statutes enforced in our public justice system to one that operates in private tribunals where workers are forced to arbitrate their claims as a condition of employment and without due process guarantees.

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