The Future Of Employment Arbitration In The Class Action Context Remains Uncertain As Controversial Cases Advance On Appeal

Many thought that the U.S. Supreme Court’s recent decisions in AT&T Mobility v. Concepcion, 131 S.Ct. 1740 (2011), and CompuCredit Corp. v. Greenwood, 132 S.Ct. 665 (2012), had firmly established that private arbitration agreements with class action waivers were enforceable under the Federal Arbitration Act (“FAA”). However, the National Labor Relations Board and several courts – particularly in the Second Circuit – have interpreted such cases narrowly to avoid that result. The future enforceability of these waivers, and private arbitration of employment disputes overall, remains uncertain in the workplace class action context as these cases advance on appeal.

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