On Wednesday, August 8, 2012, NELA and The Institute partnered with a group of public interest organizations and law firms to present “Forced Arbitration: Where Workers Stand Today.” The brown-bag lunch program was moderated by Rebecca M. Hamburg Cappy, Program Director for both NELA and The Institute, and featured presentations from Leslie Bailey (Staff Attorney – Public Justice), Cliff Palefsky (McGuinn, Hillsman and Palefsky), and Cynthia Rice (Director of Litigation Advocacy and Training – California Rural Legal Assistance).
The attendees, who crowded into a conference room at the offices of Lieff Cabraser Hiemann & Bernstein in San Francisco, were treated to an informative and timely discussion of the current state of forced arbitration in employment cases. Leslie Bailey devoted her remarks to surveying trends in the way in which courts have been evaluating class and collective action waivers in employment cases in the wake of the U.S Supreme Court’s April 2011 decision in AT&T Mobility, LLC v. Concepcion. As you will recall, in Concepcion, the U.S. Supreme Court held that the Federal Arbitration Act preempted a California state rule that, in some cases, precluded the enforcement of forced arbitration agreements containing class action waivers. Although Concepcion was a consumer case, its reasoning has had serious implications for workers resisting the enforcement of such waivers in cases arising under various employment laws. For example, cases in which plaintiffs have challenged class action waivers in putative collective actions under the Fair Labor Standards Act and in “pattern or practice” cases under Title VII of the 1964 Civil Rights Act are currently pending in the U.S. Courts of Appeal.
Cliff Palefsky focused his comments on the implications of the National Labor Relations Board’s January 2012 decision in D.R. Horton Inc. and Michael Cuda, in which the Board found that an arbitration agreement preventing employees, as a condition of their employment, from filing joint, class, collective, or representative actions in any forum violated their rights under Sections 7 and 8(a)(1) of the National Labor Relations Act. The Board’s decision is currently pending before the Fifth Circuit Court of Appeals, and could have profound consequences for the rights of workers to join together to improve their working conditions and challenge systemic discrimination.
Cynthia Rice closed the program with a valuable, California-centric, analysis of the current state of forced arbitration of employment cases. One key issue she highlighted is the impact that class action waivers in forced arbitration agreements have on the ability of workers to bring representative actions under California’s Private Attorney General Act (PAGA), which allows private individuals to pursue civil remedies for violations of the California Labor Code on behalf of both the state and “other current or former employees.” One can see the problem that arises when such claims are forced into bilateral arbitration. Because arbitrators are not empowered to deliver rulings binding on anyone except the parties to the arbitration, PAGA’s remedial and deterrent purposes are effectively gutted by compelling individual arbitration.
The event was sponsored by NELA, The Institute, the Alliance for Justice, the American Constitution Society -- Bay Area Lawyer Chapter, California Rural Legal Assistance, The Legal Aid Society – Employment Law Center, Lieff Cabraser Heimann & Bernstein, Lewis Feinberg Lee Renaker & Jackson, and Public Justice. Links to the written materials produced for this event on the NELA Exchange are provided below.
Leslie Bailey_Public Justice_Selected Post-Concepcion Arbitration Decisions
Cynthia Rice_CRLA_Selected California Arbitration Decisions
NELA and The Institute_Trends In Employment Arbitration Post-Concepcion