Employee Rights and Employment Policy Journal

Due Process in Employment Arbitration: The State of the Law and the Need for Self-Regulation

Abstract

By
Martin H. Malin

Gilmer and Circuit City enforced pre-dispute agreements to arbitrate public law claims imposed by employers as a condition of employment, provided that the employees could effectively vindicate their public law rights in the arbitral forum.  The rationale that the agreement merely substitutes the arbitral forum for the judicial suggests that courts are to police the justness of arbitral procedures.  More recent Court decisions, however, have backed off, resulting in the extremely heavy burdens placed on employees challenging the adequacy of arbitral procedures and the deferral of adequacy issues to the arbitrator.  Some courts have tried to fill this regulatory gap with the common law doctrine of unconscionability but this approach also has major drawbacks as a tool for ensuring arbitral fairness.  The result is a heavy burden on the ADR community to regulate itself.  Professor Malin chronicles the limits of current judicial policing and discuss the advantages and limits of self-regulation