Civilrights.org

The National Employment Lawyers Association (NELA), the largest professional organization of lawyers who represent primarily workers in disputes with their employers, applauds the leadership of Senator Russ Feingold (D-WI) and Rep. Hank Johnson (D-GA) in introducing the Arbitration Fairness Act (AFA). The AFA would eliminate mandatory arbitration of employment claims unless pursuant to a collective bargaining agreement. It would similarly eliminate pre-dispute mandatory arbitration of consumer claims.

The use of pre-dispute mandatory arbitration clauses as a tool for large companies to "stack the deck" in their favor in litigation with their employees or customers has grown exponentially over the last 15 years. "Today, pre-dispute mandatory arbitration clauses are imposed as a condition of employment by companies large and small. At least one-fifth of all employees are subject to mandatory arbitration – a greater proportion of the workforce than is protected by union contracts," stated Kathleen L. Bogas, NELA President.

David R. Cashdan, NELA's Vice President of Public Policy, added, "Mandatory arbitration agreements make it extremely difficult for employees to hold their employers accountable for violating the rights of employees." These workplace rights include the right to be free of discrimination and harassment on the basis of race, color, national origin, sex, religion, age, and disability; to be paid overtime for working more than 40 hours in a week; to return to the job after military or reserve service; to be protected from retaliation for "blowing the whistle" on corporate crimes; and to family and medical leave.

• Many arbitrators have an inherent conflict-of-interest because they benefit from repeat business from the employer.

• The cost of mandatory arbitration can be so great that it deters workers from beginning proceedings in the first place. Filing fees can be exorbitant, and arbitrators are often paid at hourly rates of $250 or more.

• Most arbitration clauses are written solely by companies' lawyers – there is no negotiation with employees about their terms.

• Arbitrators do not have to follow or even know the law. Arbitration awards can only be appealed in the rarest circumstances.

• Mandatory arbitration removes employees' rights to trial by jury.

• Arbitrators rarely award compensatory and punitive damages or enjoin unlawful conduct, even when those remedies are available and warranted.

NELA urges Congress to ban the practice of mandatory arbitration by enacting the Arbitration Fairness Act without delay. The civil rights of workers are at stake.