Document Type

Article

Publication Date

2008

Abstract

"Mandatory arbitration" as used here means that employees must agree as a condition of employment to arbitrate all legal disputes with their employer, including statutory claims, rather than take them to court. The Supreme Court has upheld the validity of such agreements on the grounds that they merely provide for a change of forum and not a loss of substantive rights. Opponents contend this wrongfully deprives employees of the right to a jury trial and other statutory procedural benefits. Various empirical studies indicate, however, that employees similarly situated do about as well in arbitration as in court actions, or even better, although successful plaintiffs get larger monetary awards in court. Perhaps most important as a practical matter, lower-paid employees generally cannot get access to court while they can secure a hearing in arbitration. For most such workers, arbitration may be the only realistic option. This Article will conclude that the primary concern should be to ensure due process in mandatory arbitration. That would mean guarantees such as a mutually selected arbitrator, no broad prohibition of class actions, a fair hearing reasonable costs, and the same remedies as provided by any applicable law.


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