Mandatory arbitration is not just a theoretical restriction on workers` and consumers` rights; it has a significant practical impact on the ability of workers and consumers to exercise their rights and succeed. These examples show that multi-track dispute resolution procedures can reduce the need for arbitration in binding proceedings. However, under current legislation, the company can decide what procedures are imposed on workers or consumers. Conflicts around the uber driving company have recently shown how this allows companies to control the legal environment in which they operate. Labour arbitration has its own history, although it fits the general trends described above. The FAA contains a clause that appears to exclude labour disputes from coverage of status. Section 1 of the Statute states that “nothing applies to the employment contracts of seafarers, railway workers or any other category of workers working in foreign or intergovernmental trade.” Despite this language, the Supreme Court of Gilmer v. Interstate/Johnson Lane Corp., 500 U.S.20, applied the FAA to a work case in 1991 and ruled that a staff member was required to file a complaint before an arbitration tribunal and not in an age discrimination court. The decision was unclear as to the effects of the legal exclusion on employment contracts, since in this case the compromise clause was not in a contract between a worker and an employer, but in a contract between a worker and the agency from which the worker had to register to obtain the work. The Supreme Court clarified the ambiguity in 2001 in Circuit City Stores, Inc. v. Adams, 532 U.S.
105, interpreted the “employment contract” exemption very concisely. It decided that the statute applied to all employment contracts, with the exception of those involving workers who, like seafarers and railway workers, crossed national borders in transport. Since then, the courts have applied the FAA to many work cases. Table 1 presents the results of a 2011 study that compared the overall results of mandatory arbitration and litigation testing procedures. The comparison is based on the results of 1,213 mandatory arbitration proceedings managed over a five-year period by the American Arbitration Association, the country`s largest arbitration service provider. These are compared to the results of studies on labour discrimination cases in federal courts and non-civil cases in public courts. If two companies decide that it is in their best interest to mediate, arbitration becomes a win-win option. The same cannot always be said of arbitration proceedings involving less legally demanding parties. Many cases of effective justifications appear under the Fair Labor Standards Act – a law that explicitly provides that aggrieved workers can take “collective action.” 20 In these cases, these were often allegations of classification errors, z.B whether the workers were unfairly referred to as supervisors and were therefore wrongly considered ineligible for overtime payments. In deciding FlSA class appeals, preliminary proceedings must decide whether the FLSA status provision for the application of “class actions” is a procedural right or a material right. If it is a material right, Mitsubishi cannot waive it.
Most of the courts that have considered this issue have held that the right to go to class action under the FLSA is procedural, and therefore compound arbitration and class action has been waived.21 In the absence of official government statistics on the extent of mandatory arbitration, our best estimates come from academic surveys that have examined aspects of this issue.