A series of U.S. Supreme Court decisions spanning nearly two decades, the two most recent of which are Epic Systems v. Lewis and Lamps Plus v. Varela, have ensured that individual arbitration will remain a central feature of the dispute resolution landscape in employment cases. While there continues to be substantial, intense focus on the equity and propriety of pre-dispute, mandatory arbitration clauses in employment contracts, particularly ones containing class, collective, and joint action bans, that broader discussion has moved for the most part to the realm of legislation and public policy. This article is not concerned with policy prescriptions, but rather with the reality faced by plaintiffs’ employment attorneys and their clients seeking to resolve employment disputes.
For the foreseeable future, individual arbitration—including a potentially substantial increase in mass individual arbitrations—is here to stay. It therefore is essential for plaintiffs’ employment attorneys to appreciate that the differences between resolving disputes in arbitration instead of litigating in court offer potential benefits that may be especially relevant in employment cases. Being prepared to take advantage of the opportunities those differences present can help plaintiffs’ employment attorneys maximize the utility of the arbitral system and optimize potential results for their clients.