Since its inception in 1985, NELA has been a leader in opposing forced arbitration of employment claims and it is one of our top legislative priorities. Forced arbitration denies individuals access to our country's civil justice system when employers violate our nation's employment and civil rights laws.
Forced arbitration of workplace claims is anathema to our public justice system because it occurs in secret, private tribunals in the absence of accompanying legal safeguards, such as a written record of the arbitration proceedings, the right to appeal the arbitrator's decision if the law is not applied correctly, or other guarantees that ensure a fair process that exist in a court of law. The practice is widespread, affecting every segment of the workforce from minimum wage workers to our nation's servicemembers to highly compensated professionals who are compelled to give up their right to go to court when they believe they have been illegally treated in the workplace in order to get or keep a job.
In 2010, 27 percent of U.S. employers reported that they required forced arbitration of employment disputes—covering over 36 million employees, or one-third of the non-union workforce. This percentage is likely higher today and continues to grow in the wake of court rulings that have misinterpreted the Federal Arbitration Act (FAA), which was enacted in 1925 to regulate voluntary arbitration agreements between commercial parties with equal bargaining power. Workplace laws at risk include the:
- Civil Rights Acts of 1964 and 1991;
- Age Discrimination in Employment Act;
- Americans with Disabilities Act Amendments Act;
- Family and Medical Leave Act;
- Fair Labor Standards Act;
- Equal Pay Act;
- Uniformed Services Employment and Reemployment Rights Act;
- National Labor Relations Act; and
- Lilly Ledbetter Fair Pay Act of 2009.
Arbitration is an appropriate way to resolve disputes when it is knowingly and voluntarily agreed to by the parties after a dispute arises. This includes the protection of workers' substantive legal rights, such as their right to join together using voluntary arbitration or the courts to challenge discriminatory employment practices, violations of wage and hour laws, or other unlawful actions by the employer.
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Reintroduction Of The Arbitration Fairness Act Of 2018
On March 22, Senator Richard Blumenthal (D-CT) reintroduced the Arbitration Fairness Act of 2018 (AFA, S. 2591). Senator Blumenthal has been a longtime champion in the fight to end forced arbitration in employment, with a special focus on ending the imposition of forced arbitration against veterans and service members. The AFA would make it unlawful for employers to impose arbitration on employees except when knowingly and voluntarily agreed to after a dispute arises or pursuant to a collective bargaining agreement. The House version of the bill (H.R. 1374) was reintroduced in the 115th Congress by Representative Hank Johnson (D-GA) in March 2017. NELA looks forward to continuing to work with Senator Blumenthal and Congressman Johnson to gain passage of this important legislation. The list below includes bills introduced in the 115th Congress that address the problem of forced arbitration of workplace disputes:
- Arbitration Fairness Act of 2018 (AFA, S. 2591/H.R. 1374),
Reintroduced by Senator Richard Blumenthal (D-CT) and Representative Hank C. Johnson (D-GA);
- Justice for Servicemembers and Veterans Act of 2017 (JSVA S. 646)
Reintroduced by Senator Richard Blumenthal (D-CT).
- Restoring Statutory Rights and Interests of the States Act (RSRA, S. 550/H.R. 1396)
Reintroduced by Senator Patrick Leahy (D-VT) and Representative David Cicilline (D-RI); and the
- Mandatory Arbitration Transparency Act of 2017 (MATA, S. 647)
Introduced by Senator Richard Blumenthal (D-CT).
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Join NELA In Ending Forced Arbitration Of Workplace Disputes
As a leader of the Fair Arbitration Now Coalition, NELA is educating the public and policymakers on the need to ban forced arbitration. In fighting against forced arbitration, NELA and our members:
- Lobby Congress for legislation that would prevent employers from forcing workers to give up their right to go to court—and accompanying legal protections—when they have workplace claims;
- File amicus briefs in significant cases challenging forced arbitration; and
- Serve as a resource for press exposés of forced arbitration practices.
- Join NELA's Legislative Action Team! To leverage our voices, we have created NELA's Legislative Action Team (LAT) to take action to protect and advance workers’ rights. The LAT engages NELA members and Affiliate members—as community leaders and constituents—in lobbying Congress and influencing public opinion on proposed legislation and public policy that are important to you, your clients, and workers across the country. You can sign up at www.nela.org/LAT.
To get involved in NELA's efforts to oppose forced arbitration, contact NELA Legislative & Public Policy Director Laura M. Flegel at email@example.com.