Earlier this year, the Supreme Court revisited the subject of arbitration provisions in the employment context, creating some concern among legislators about the implications of this decision.
In this week’s Connecticut Law Tribune, my colleague Cara Ceraso has drafted a nifty article about legislation now pending in Congress that would allow employees to bring their employment law claims to court more often. (You can download the article here.)
The bill at issue, S. 931 — known as the "Arbitration Fairness Act" — would in many cases eliminate some arbitration provisions in employment law contracts and really impact what employers and employees can agree.
Cara goes a bit further into detail to discuss what the legislation would — and would not — do:
The proposed legislation generally would not cover agreements to arbitrate between an employer and a labor organization or between labor organizations. However, there is a “carve out” provision stating that no arbitration agreement between an employer and a labor organization or between labor organizations can waive an employee’s right to seek judicial enforcement of statutory civil rights.
This would have the effect of reversing the Supreme Court’s recent holding in 14 Penn Plaza v. Pyett that an arbitration provision in a collective bargaining agreement could be enforced and thus prevent an employee from pursuing statutory discrimination claims in court.
The proposed legislation comes in response to a series of U.S. Supreme Court decisions that have extended the scope of the Federal Arbitration Act – originally intended to resolve disputes between commercial entities having similar sophistication and bargaining power – to apply arbitration to resolve disputes between employers and employees.