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While arbitration as a form of alternative dispute resolution (“ADR”) has long had a presence in American jurisprudence, a recent Supreme Court decision —coupled with significant cultural trends —have left many employers and legislators wondering about the continued viability of mandatory pre-dispute arbitration for all employment disputes.

Is the FAIR Act Fundamentally Unfair to Employers?

On February 28, 2019, U.S. Representative Hank Johnson (D-GA) and U.S. Senator Richard Blumenthal (D-CT) introduced “The Forced Arbitration Injustice Repeal Act” (“FAIR Act”) which seeks to (1) prohibit pre-dispute arbitration agreements that force arbitration of future employment, consumer, antitrust, or civil rights disputes, and (2) prohibit agreements and practices that interfere with the rights of individuals, workers, and small businesses to participate in a joint, class, or collective action related to an employment, consumer, antitrust, or civil rights dispute.

The Senate bill is S. 610. It has 33 co-sponsors, all Democrats. It has been referred to the Senate Judiciary Committee, where it is unlikely to receive consideration. The House bill (H.R. 1423), on the other hand, has been referred to the House Judiciary Committee where it is likely to receive active consideration. It has 160 co-sponsors.
Continue Reading New Federal Legislation Seeks to Eliminate Mandatory Arbitration Agreements