Tamar Meshel on the Arbitration of Employment Agreements
Some time guest blogger, Tamar Meshel (right),
has a new article forthcoming on the effect of recent SCOTUS decisions on employment arbitration. Nothing to see here folks: continue to expect to arbitrate your employment disputes.
You can download the article from SSRN here.
Here’s the abstract:
This Article is the first to examine the impact of the Supreme Court’s latest Federal Arbitration Act (FAA) decisions on the debate surrounding so-called “forced” employment arbitration. In Southwest Airlines Co. v. Saxon, the Supreme Court held that airport cargo loaders were exempt from arbitration under § 1 of the FAA, which excludes certain workers “engaged in interstate commerce” from the scope of the Act. In Viking River Cruises, Inc. v. Moriana, the Court held that the FAA did not preempt a judge-made rule prohibiting waivers of representative claims brought by employees under California’s Labor Code Private Attorneys General Act.
The Article argues that in both Southwest Airlines and Viking River the Supreme Court placed—for the first time—subtle limits on the use of arbitration in the employment context. These decisions may therefore alleviate some of the concerns surrounding employment arbitration and may signal an emerging trend in the Supreme Court of restricting the FAA’s impact on employment disputes. Notwithstanding these piecemeal developments in the Court’s employment arbitration jurisprudence, the Article also shows that thus far neither Southwest Airlines nor Viking River has put a serious dent in the FAA’s “pro-arbitration” policy as applied by the lower courts in the employment context. Southwest Airlines has not resulted in any substantial shift in lower courts’ approach to the scope of § 1’s exemption. Viking River, in turn, has produced mostly jurisprudential disarray and only time will tell what its ultimate impact will be on the enforcement of employment arbitration agreements waiving representative actions.