The Enforceability of Class Action Waivers in Arbitration Clauses - Chapter 21 - AAA Handbook on Arbitration Practice - Second Edition

Author(s):

Thomas W. H. Barlow

Page Count:

12 pages

Media Description:

1 PDF Download

Published:

December, 2015

Author Detail:

Thomas W. H. Barlow is a partner in the Troy office of Giarmarco, Mullins &
Horton, P.C. A labor and employment lawyer, he has more than 40 years of experience
representing management in the negotiation and administration of collective bargaining
agreements and in defending management in discrimination, harassment, wrongful
dismissal, Sarbanes-Oxley, whistle-blowing, and retaliation cases. Nickolas Guttman, a
summer associate, helped prepare this article.

PDF597.82 KB

$40.00

Description:

Originally from:

AAA Handbook on Arbitration Practice - Second Edition

Preview Page

CHAPTER 21

THE ENFORCEABILITY OF CLASS ACTION

WAIVERS IN ARBITRATION CLAUSES

Thomas W. H. Barlow

I. Introduction

Employers are increasingly including in their arbitration agreements

a provision waiving the right to bring class action claims in arbitration.

The case law regarding the enforceability of class action waivers in the

employment context is relatively sparse, but has grown over the last few

years. There is more case law on this issue in the consumer arena. This

article addresses the issues surrounding class action waivers as well as

proposed legislation that would make this issue moot by making

arbitration agreements in the employment setting unenforceable.

With the enforceability of arbitration agreements established in the

labor and employment arena, even with respect to statutory discrimination

claims, employers are fighting efforts by employees to bring collective

claims in arbitration. The main tool employers are using is a provision

waiving the right to bring a class or collective arbitration. Should courts

enforce such waivers? Some proponents of class arbitration waivers argue

that employees ought to be able to waive a procedural right in exchange

for the benefits of arbitration; others argue that class arbitration waivers

make it impossible to bring low-value claims to the arbitral forum because

arbitration costs (if the employer is not required to pay them) and the

employee’s attorney fees could exceed the potential recovery, thereby

depriving the employee of his or her substantive rights. On the other hand,

if the whole point of a collective action is to help people bring meritorious