October 24, 2018

Conservative majority’s rulings in three cases could move more disputes into arbitration, limit class actions

Employers are still trying to figure out how to keep their workers from suing them, as three cases currently before the Supreme Court test the limits of firms’ ability to move disputes into arbitration and out of court and the public eye.

With conservative justices in the majority, the court handed employers a victory earlier this year with a 5-4 decision affirming employers’ right to require workers to resolve complaints through arbitration and to bar workers from banding together in class actions challenging pay practices, discrimination and other alleged labor violations.

But the area of arbitration in the workplace remains fraught with uncertainty, as the new cases show, and the court is seeking to clear up some of the ambiguity. Two of the cases are scheduled to be argued before the court on Monday.

“These are issues that remain of importance to the big business community,” said Kalpana Kotagal, a plaintiff-side lawyer with Cohen Milstein Sellers & Toll PLLC, a law firm that has represented workers in high-profile class action cases.

Advocates for sexual-harassment victims say that arbitration—which is generally a confidential proceeding, with little or no public paper trail—allows harassers and their employers to avoid public accountability and keep claims and settlements secret. Disputes are heard by arbitrators, often retired lawyers or judges, who are appointed by both sides in the conflict.

The complete article can be accessed here.