Dean of the ILR School at Cornell University Alvin Colvin has found that more than one-half of all workers are now subject to mandatory arbitration as a non-negotiable term of their employment. The growth in mandatory employment arbitration clauses coincides with a series of Supreme Court ruling beginning in the early 1990’s. In 1992, the percentage of employees subject to arbitration stood at two percent. By the early 2000’s, that percentage had risen to almost a quarter of the non-union workforce. Colvin estimates that mandatory arbitration now covers 56 percent of the non-union labor force.
On March 3, 2022 President Biden signed into law prohibiting mandatory arbitration of sexual harassment and sexual assault claims. This Act is part of a growing trend to eliminate or narrow mandatory workplace arbitration agreements. For example, in 2019, California enacted a law that essentially bans mandatory arbitration agreements and prohibits employers from requiring any applicant for employment or any employee to waive any right, forum, or procedure for any violation of the California Fair Employment and Housing Act or other California employment-related statute, such as the California Labor Code. The enforceability of this statute is currently in litigation.
On the federal level, efforts have been underway to expand the prohibition against mandatory arbitration to all forms of unlawful discrimination, harassment and retaliation claims under Title VII (the Federal Employment Discrimination law), the ADEA (Age Discrimination in Employment), the ADA (Americans With Disabilities Act) and other employment-related laws.
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