(Arbitrator and NAA member, Maretta Comfort Toedt)
In Epic Systems v. Lewis, 138 S. Ct. 1612 (2018), the Supreme Court held that an employer could enforce a prohibition of class-action arbitration in an employment agreement that required arbitration for essentially all disputes. In its 5-4 decision. the Court ruled that such a class-action prohibition did not violate Section 7 of the National Labor Relations Act, which provides statutory protection for concerted activity. The Court’s decision effectively closed a door to employees seeking collective relief when required to arbitrate their disputes.
But an extensive survey, conducted by University of California Davis professors David Horton and Andrea Chandrasekher, suggests that plaintiffs’ lawyers might have discovered other avenues for success through the filing of multiple individual claims in arbitration. The professors surveyed over 40,000 private arbitration employment, consumer and medical malpractice arbitration awards from 2010 to 2016; they found that plaintiffs’ lawyers could gain leverage by filing multiple individual claims against employers. A key finding of the survey was that experienced plaintiffs’ attorneys made a difference in the success rate of these cases. A summary of the survey can be found here.