Eliminating the Mandatory Trade-off: Should Employees Have the Right to Choose Arbitration ?

Authors

Michael Peabody

Document Type

Article

Abstract

As more employers include mandatory arbitration provisions in their employment contracts, policy-makers are becoming concerned that employees are being forced to trade their civil and statutory rights for their jobs. The California Legislature is considering legislation designed to combat this tendency and to provide legal protection for employees who might otherwise be forced to waive the right for redress of grievances, legal protections against discrimination, and other rights. Although the legislation was designed to protect the constitutional rights of employees, there are legal considerations and policy concerns that challenge the viability of this type of legislation. The primary question is whether the act is preempted by the Federal Arbitration Act (FAA), which states that agreements to arbitrate claims are irrevocable and so is contrary to the proposed legislation. In addition to the legal concerns, there is the potential for conflict between the constitutional right of business and individuals to make contracts and the constitutional preservation of civil rights. This Comment discusses the above issues in addition to the history of legislation on arbitration provisions in employment contracts in California, and the potential impact that this line of legislation could have on individuals and business.

Recommended Citation

Michael Peabody, Eliminating the Mandatory Trade-off: Should Employees Have the Right to Choose Arbitration ?, 1 Pepp. Disp. Resol. L.J. Iss. 1 (2000)
Available at: https://digitalcommons.pepperdine.edu/drlj/vol1/iss1/8