The proposed Arbitration Fairness Act (Feingold/Johnson) would essentially ban arbitration agreements in employment. While I’m skeptical of this bill’s chances of success in getting a vote in the Senate, or in being signed by the President, and I believe this mostly is done to show that someone is “doing something,” I think it’s something to take note of.
This site has contained an editorial skepticism about arbitration as a panacea for employment disputes, and has maintained a professional skepticism about the long-term viability of overly aggressive arbitration agreements. This bill’s introduction marks the beginning of the blow-back phase that, in my view, was inevitable.
Politicians in this country aren’t functioning as some sort of court of final review. If they are working to overturn court decisions, or change the law, they are doing so because they have detected, most likely through polling data, some political support for what they are doing. This political support has come from overly aggressive employers putting their hands in the arbitration cookie jars and getting caught one too many times.
The next interesting result will be the California Supreme Court’s take on class action waivers in arbitration agreements. While a pro-employer victory would be wonderful for our side of the bar, I believe it would result in considerable political blow-back.
And the thing about political blow-back is that it doesn’t often return things to the status quo ante; instead, it tends to go even further.
