Further Attacks On Employment Arbitrations
Senator Al Franken, among others, has reintroduced legislation to eliminate mandatory arbitration in employment, civil rights, and consumer cases. The so-called Arbitration Fairness Act of 2011 (S. 987 (pdf), H.R. 1873) bears a striking resemblance to the Arbitration Fairness Act of 2009, which went nowhere. This latest attempt seems to be a response to the Supreme Court's recent decision in AT&T Mobility v. Concepcion.
The legislation is premised on several questionable assumptions, including assumptions that:
- The broadly worded Federal Arbitration Act was never intended to apply to employment disputes and the Supreme Court has misinterpreted it in that respect,
- An employee can't knowingly agree to arbitration until after a dispute has arisen.
The Federal Arbitration Act and decades of court cases explain that the goal is to put arbitration agreements on the same footing as other contracts. Saying that this bill is intended to give effect to the original legislative intent is clearly inaccurate. To quote Al Franken's SNL character Stuart Smalley, "That's just stinkin' thinkin'!"
