I know many of us expected changes to arbitration in 2016 — well, those changes were delayed — will they happen now? Curious what our readers think about the following two prospects — feel free to comment below or e-mail me:
Elimination of mandatory pre-dispute arbitration.
Having regained control of the Senate, Congressional Democrats are expected to pass the Forced Arbitration Injustice Repeal Act, and Biden has indicated his support. The act, which has already passed the House, would invalidate pre-dispute arbitration agreements in the employment, civil rights, consumer, and antitrust contexts, and would require employers to litigate workplace disputes in court.
Elimination of class-action waivers.
In its 2018 decision in Epic Systems v. Lewis, the Supreme Court expressly upheld class and collective action waivers in the employment context. Employers utilizing such waivers can currently mandate the resolution of employment-related claims on an individual basis in an arbitration proceeding, thereby minimizing their exposure to potential class-wide liability. Notwithstanding Epic Systems, President-elect Biden has stated that he would sign legislation prohibiting employers from seeking such waivers.