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Employment Arbitration Programs

BY Alan D. Berkowitz, J. Ian Downes
June 19, 2013

The enforcement of arbitration agreements in employment and other contexts has been a source of continuing litigation. Most recently, many of these cases have focused on whether arbitration agreements may be used to preclude class or collective action litigation. The clear trend in these cases has been to uphold class and collective action waivers. As a result, many employers have begun to revisit the question of whether they should adopt mandatory arbitration programs. This article explores recent developments in the arbitration context, particularly those involving class or collective action issues, and highlights a number of significant unsettled issues that may soon be decided.

'Enforceability of Arbitration Agreements Generally

'The Federal Arbitration Act (FAA) states that arbitration agreements “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9. U.S.C. ' 2. The Supreme Court has long held that the FAA permits mandatory arbitration of statutory claims, including employment discrimination claims. See Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 26 (1991) (requiring arbitration of ADEA claims). Arbitration will be precluded only where “Congress itself has evinced an intention to preclude a waiver of judicial remedies for the statutory rights at issue.” Id. at 26 (quoting Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 628 (1985)).

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