Don’t Like Unions? You Might Like This

You probably have contracts for credit cards, cable TV, cell phone, mortgage—and employment— where you are required to waive access to courts and agree to arbitration. The company with superior bargaining power gets to dictate terms. Worse, its competitors have the same contracts. Compounding this, these mandatory agreements often require you to waive a class action case. So, suppose you’re getting dinged for $100 in one of the relationships, and you’re unhappy about it. Answer: take it to arbitration. Right … you’ll hired a lawyer for several thousand dollars to win your $100 case. That’s where class actions can be useful. Most courts uphold waivers of class actions. Little guy loses here. Now, the NLRB has ruled (again) that American Express Co violated the concerted activity provisions of the National Labor Relations Act by requiring requiring workers to waive access to class actions in mandatory arbitration cases. It’s a win for employees at American Express, who were contesting the company’s failure to pay for overtime and meal breaks. The ruling has potential to be a win for everyone who is forced to waive a class action in arbitration. American Express will appeal; and they will likely win because of the caselaw in this area, which has lost sight of the fact that arbitration is supposed to a substitute for a judicial forum— and not a kangaroo court.