How might Judge Amy Coney Barrett adjudicate your arbitration agreements?

Congratulations! You’ve made half-way through “Amy Coney Barrett Week” at The Employer Handbook. Well, technically, you won’t reach the midpoint until you get about 178 words into this 356-word-long post, but you get the idea.

So, how about we discuss the thrilling, compelling, edge-of-your-seat world of arbitration provisions?

I’m often a jury waiver guy. But, many of you make employees sign waivers in which they agree to forego litigation of claims they may have against the employer in favor of binding arbitration. And not just that, the employee further agrees to go it alone — no class or collective actions allowed.

A few years ago, the Supreme Court ruled in Epic Systems v. Lewis that these types of arbitration provisions are fair game. However, the Supreme Court left open the question of who decides the arbitrability — wait, is “arbitrability” a word?

Please wait patiently while I Google.

Well, would you look at that; arbitrability is a word. But I prefer plain English. So, here’s the question: who decides whether a single plaintiff can arbitrate class or collective actions? Is it the judge or the arbitrator?

In the wake of the Supreme Court’s decision in Epic Systems, Judge Barrett concluded (here) that the availability of class or collective arbitration is a threshold question of arbitrability. A federal judge — not an arbitrator — must evaluate whether an employee’s arbitration agreement with an employer permits class or collective arbitration.

I’ll spare you the details of Judge Barrett’s opinion. Because if this blog post doesn’t have you pouring a 5-hour ENERGY shot into your morning coffee, an in-depth analysis of Judge Barrett’s decision will. No offense to Judge Barrett, she writes well. But, there’s only so much you can do to liven up an arbitration discussion.

So why should you care?

I’ll tell you why. Because unlike the subject matter of the cases were discussed on Monday and Tuesday, the Supreme Court has not yet resolved the arbitration issue that Judge Barrett addressed in today’s post. Consequently, if/when it does, we know how Judge Barrett, who cited Judge Alito in her opinion, by the way, will decide it.

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