The Federal Arbitration Act (FAA) provides that agreements to
arbitrate claims are valid and enforceable. With the support of
federal law, employers regularly craft and rely on broad
arbitration agreements, some going so far as to require arbitrators
to decide whether a specific claim is subject to arbitration. Look
no further than the United States Supreme Court's Epic
Systems Corp. v. Lewis decision in 2018, a clear victory for
employers, holding that class and collective waiver provisions in
the context of employment arbitration agreements are enforceable
under the FAA, despite challenges under the National Labor
Relations Act. As 2019 kicks off, employers using or considering
requiring arbitration of employment disputes will need to grapple
with new challenges presented not only by courts of law and
legislatures, but by the court of public opinion.
