Jottings By An Employer's Lawyer

Tuesday, May 17, 2011

Legislative Override of Supreme Court

What a difference three years makes. Unlike the opening weeks of the prior Congress when it could not act fast enough to get the reversal of the Supreme Court's decision in the Lilly Ledbetter case to President Obama's desk, the offering of the Arbitration Fairness Act by Senator Franken, faces much more difficult sledding. Franken bill would block mandatory arbitration clauses in cell phone contracts.

Although this bill has been introduced now for several sessions, the latest is at least tied to the Supreme Court's recent decision in ATT Mobility LLC v. Concepcion which upheld an arbitration agreement that prohibited class actions.  See Franken's press release from earlier today here. The bill would ban mandatory arbitration both in consumer transactions and in the workplace (with an exception for arbitration provided for by collective bargaining).

Still, having testified at the Judiciary Committee hearing in the fall of 2009 where Senator Franken challenged mandatory arbitration, I have some personal experience with how strongly he feels about this bill. Here's a link to the testimony on the arbitration issue (fortunately for me I was testifying about the Gross decision).

For supporters of arbitration, although it would seem that passage of the AFA would be out of the question in this Congress, I wouldn't necessarily turn out the lights. If, and that' certainly is a big if, the idea that arbitation is unfair in a consumer setting could touch a chord in a large number of people (and it does not seem to have done so yet) this is one that could catch momentum quickly.

Particularly since arbitration is not something that most legislators have strong feelings about one way or another. For those who think it is a good thing in employment matters, the fact that prohibiting in the employment context always gets linked to banning it in consumer transactions is not comforting.

Update (05/19/2011 ) -  Although the text of the bill is not yet posted on the official Senate website, it is S.B. 987 and should be available in the next few days. From seeing a copy of the bill on BNA's Daily Labor Report, one interesting thing is that the bill has dropped the ban on arbitration in franchise agreements which was present in prior versions. Presumably, that was done to remove the objections of some. See the comment from the Defense Research Institute, which also points out that the bill contains a provision that would nullify another Supreme Court arbitration decision, Rent-A-Center West, Inc. v. Jackson, 120 S. Ct. 2772 (2010). The 2011 version of the Arbitation Fairness Act requires that decisions on the enforcibility of the arbitration agreement be made by the court, not an arbitrator.


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