abstract. Companies have broad power to funnel employment disputes into individualized arbitration, thereby preventing employees from vindicating workplace rights in court. Recently, however, plaintiff-side lawyers discovered how to file thousands of individual arbitration claims simultaneously. Faced with this mass arbitration deluge, companies have shifted from encouraging arbitration to trying to thwart it. This Essay argues that mass arbitration is a concerted activity protected by the National Labor Relations Act and that many employer countermeasures therefore risk violating the statute. Even though, after Epic Systems, the NLRA no longer guarantees employees a right to bring class actions, it guarantees them a right to mass arbitration.
For decades, employers have sought to shift employment disputes out of the courts. Private arbitration, they claimed, offered speedier resolution, greater confidentiality, and the freedom to customize procedural rules.1
Labor advocates have pushed back. Despite the dismal odds of prevailing on employment-related claims in court,2 arbitration is even less appealing to workers. Lower worker win rates and smaller awards mean that many employment claims are not worth pursuing in arbitration.3 And unlike the unnamed class members in class actions, workers who file arbitration claims must reveal their identities to their employers, opening themselves up to retaliation.4
By broadly interpreting the Federal Arbitration Act...
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