Like a lot of things in life, the law sometimes acts as a pendulum. Move too far in one direction and it is only a matter of time before things start to swing the other way.
Forced arbitration agreements are a prime example.
Courts have been increasingly enforcing arbitration agreements, preventing employees from having a jury of their peers hear their claims of illegal employment practices. Arbitration agreements are often presented by management on a take it or leave it basis: employment, or in some instances continued employment, is premised on the employee’s acceptance of the agreement. There are many reasons employers like to force disputes into arbitration, most of which are to the detriment of the workers. Arbitration is shrouded in secrecy, which keeps hidden the actions of repeat offenders and protects companies from negative publicity that might otherwise hold them accountable for complying with the law. Employers are repeat players in arbitration, and arbitrators know that a ruling against an employer may result in a loss of future business for that arbitrator. Whether intentional, or unintentional, this routinely prevents workers from getting a fair ruling from an arbitrator who is beholden to the employer who is footing the bill. And, through forced arbitration, employers can take away the right of employees with common claims to proceed collectively, which often results in workers simply giving up on pursuing their claims.
This is not an isolated issue. Reports have shown that, as of April 2018, over half of nonunion private-sector employees are subject to mandatory arbitration policies. This is a significant jump from just over 2 percent in 1992.
Unsurprisingly, employees have started pushing back.
Earlier this year, after continued pressure from workers, tech giants Google, Uber, Lyft, and Facebook have ended or scaled back their forced arbitration policies. Law student protests motivated Kirkland & Ellis and Sidley Austin, two of the largest law firms in the United States, to eliminate mandatory arbitration agreements for attorney and non-attorney staff. More recently, California governor Gavin Newsom signed Assembly Bill 51, which blocks forced arbitration as a condition of accepting a job or continuing employment in California.
Nichols Kaster stands with employees on the front lines pushing back against these coercive and unfair agreements. Attorneys at Nichols Kaster are not afraid to file mass individual arbitrations on behalf of 100s or 1000s of workers one by one, until the employer gives up and pays them what they are owed. Our lawyers have also successfully defeated employers’ efforts at pushing employment disputes into arbitration in the first place. As public perception continues to turn against these employment practices, Nichols Kaster will continue fighting forced arbitration. No employee should be forced to decide between their job and the right to a jury trial.