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Keeping Informed on Arbitration Issues in Congress

Those who follow this blog may notice that we have taken a keen interest in the issue of employer-mandated arbitration as a condition of employment.  It is a practice that has been increasingly widespread amongst large employers in recent years, and the effect may be that employees will have a harder time vindicating their statutory rights in the court system.

Earlier this year, on April 29, 2009, Senator Russ Feingold (D-WI) proposed the Arbitration Fairness Act of 2009 (S. 931).  The key phrase in this bill that pertains to employee rights is found in section 402(a), which reads:  “Notwithstanding any other provision of this title, no pre-dispute arbitration agreement shall be valid or enforceable if it requires arbitration of an employment…dispute.”

A similar bill (H.R. 1020) was proposed on March 16, 2009, in the House of Representatives by Representative Henry Johnson (D-GA).  While the text is not precisely the same, this House bill similarly prohibits pre-dispute arbitration agreements in the employment context and goes even further to prohibit arbitration agreements in cases where the dispute arises from a statute intended to protect civil rights.

This legislation is an important step in the right direction in protecting employees’ right to bring their grievances before a judge or jury in a court of law.  Senator Feingold, Representative Johnson, and the bills’ co-sponsors recognize that arbitration agreements were always intended to be a bargain between two parties with equal bargaining power, rather than a unilateral imposition on an employee who has no choice in the matter but to accept or quit her job.  Senator Feingold’s statements on the floor of the Senate at the bill’s introduction can be found here.

For those who are interested in informing themselves about the issues involved and the arguments to be made on this legislation, Cornell University ILR School hosted a web seminar on November 5, 2009, that is available to any who wish to watch.  The registration page for this seminar can be found here.