above issue is still hotly contested before the Supreme Court as the National
Labor Relations Board banned class-action waivers in employment agreements,
causing a rift amongst Circuit Courts on, whether arbitration clauses in the employment or independent contractor
context result in enforceable waivers of a worker’s right to bring or
participate in a class action.1 The
above issue is pending before the Supreme Court but looking at the
Pro-arbitration stance and a divided bench, it is likely that the court will
hold that waiver of class-actions valid.
Despite the legal landscape tilting
radically towards the powerful, some bright spots for consumers remain. Even
with the Supreme Court’s Concepcion and Italian Colors decisions, courts
recognize that not all arbitration clauses are enforceable. Growing public
awareness about this usurping of rights has forced some corporations to back
away from efforts to unilaterally impose arbitration.
But without a legislative override
of the Supreme Court’s decisions by amending the FAA to exempt “take it or
leave it” contracts or passing the Arbitration Fairness Act to prohibit
the inclusion of mandatory arbitration clauses in consumer or employment
contracts, corporations will grow ever more powerful, unpunished for and
undeterred in their wrongdoing, and the Seventh Amendment’s promise of access
to the courthouse will exist as nothing more than a façade for most Americans.
1 Epic Systems Corp. v. Lewis, Ernst
& Young LLP v. Morris, and NLRB v. Murphy Oil USA, Inc.