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12 Arb. L. Rev. 1 (2020)

handle is hein.journals/anlwrvw12 and id is 1 raw text is: MAKING EMPLOYMENT ARBITRATION FAIR AND ACCESSIBLE Theodore J. St. Antoine* Abstract: Mandatory arbitration agreements require employees, as a condition of employment, to agree to arbitrate all employment disputes instead of filing court suits. The Supreme Court has approved such agreements but many labor experts oppose them. The U.S. House of Representatives has passed a bill to prohibit pre-dispute agreements, the common form for mandatory arbitrations. This article argues that the House bill would have the practical effect of virtually eliminating employment arbitration. Instead, proposals are presented for either legislative or judicial steps to ensure that employment arbitration is fair and accessible. Requirements would include: (1) voluntary agreements on the part of all parties; (2) an arbitrator knowledgeable in the law, jointly selected by the parties; (3) a representative of the employee's choice; (4) no waiver of class actions; (5) all arbitration costs payable by the employer except for a modest filing fee; (6) simple but adequate discovery; (7) due process in the hearing, with cross-examination; (8) public law followed when applicable; (9) all remedies that are available under law; (10) a written award with reasons; (11) limited judicial review; and (12) incorporation of unconscionability as an element of federal arbitration law. I. INTRODUCTION The hottest legal issue in employment relations over the last three decades has been nonunion employers' use of so-called cram-down or mandatory arbitration agreements. As a condition of getting or keeping a job, employees have had to agree to resolve any employment disputes through an arbitration system established by the employer instead of taking their cases to court. That includes statutory claims, even those involving civil rights. In Gilmer v. Interstate/Johnson Lane Corp.,1 the Supreme Court approved such contractual arrangements, emphasizing that there was no loss of substantive rights but only a change of forum. Gilmer does not prevent the Equal Employment Opportunity Commission from seeking victim-specific relief in court, including reinstatement, back pay, and damages.2 But EEOC lacks the resources to pursue many meritorious individual cases.3 *James E. & Sarah A. Degan Professor Emeritus of Law, University of Michigan. 1 Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991). Gilmer 's decision under the Federal Arbitration Act, 9 U.S.C. §§ 1-6 (2018), was reaffirmed in Circuit City Stores, Inc. v. Adams, 532 U.S. 105 (2001). 2 EEOC v. Waffle House, Inc., 534 U.S. 279 (2002). 3 See, e.g., Maurice E.R. Munroe, The EEOC: Pattern and Practice Imperfect, 13 YALE L. & POL'Y REV. 219 (1995).