September 16, 2026
Workers have responded to employers’ arbitration requirements in wage and hour disputes by filing thousands of simultaneous arbitration demands, and now employers are rewriting pacts so that only what are known as batches of those demands proceed at a time, raising questions about efficiency and due process, attorneys said.
Predispute arbitration agreements, including those with class and collective action waivers, have become a common way to keep wage and hour claims out of court. That has led to workers filing mass arbitration demands, sometimes tens of thousands of simultaneous filings.
To deal with or discourage those, employers over the past few years have been adding mass arbitration protocols to arbitration agreements. One increasingly popular protocol is batching, in which an employer proceeds to arbitration with only a limited number of mass demands, sometimes containing bellwether, or representative, cases, and puts the rest on hold while pursuing a global settlement.
The employer then might move sequentially, repeating the process with additional batches, sometimes increasing the batch size or letting workers opt out. Federal courts have reached different conclusions about whether arbitration agreements containing batching protocols are conscionable.
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But Rebecca Ojserkis of Cohen Milstein Sellers & Toll LLP, who represents workers, defended the practice of mass arbitration.
“Courts have, and will continue to, analyze on a case-by-case basis whether arbitration agreements that require claims to proceed in batches violate claimants’ due process rights, contravene public policy or are otherwise unconscionable,” she said in an email.