Roughly sixty million Americans have relinquished their right to litigate any work-related claims against their employers. This is due to employers including arbitration clauses in employment contracts—a condition of employment that has led to a mass waiver of this constitutionally granted right. The pretext for this phenomenon is that arbitration is cheaper and more efficient than litigation. But in fact, arbitration works to limit employers’ legal exposure and litigation costs, and helps keep incidents of workplace abuse unexposed. Employees are less likely to be awarded damages in arbitration, and the awards are usually smaller. Employees who are governed by forced arbitration are also less likely to file claims. Some firms—including Google, Intuit, and Adobe—have acknowledged the power imbalances surrounding mandatory arbitration clauses and have dropped these clauses from their employment contracts.
This post was originally published on the Cardozo Journal of Conflict Resolution website on November 30, 2021. The original post can be accessed via the Archived Link button above.
Gluck, Henry, "Will Other States Adopt California’s Ab 51 After Its Validation by the Ninth Circuit?" (2021). CJCR Blog. 17.