Privatizing Employment Law: Expansion of Mandatory Arbitration in the Workplace

• In Event: Making Workers’ Rights Real: Labor Policy, Power, and Politics

Abstract

This paper examines the institutional, political, and legal development of employment arbitration as it shifted from a Progressive era form of justice enhancement to one coopted by business-friendly conservatives arguably more concerned with protecting employers from litigation. While arbitration has a long history in the U.S., the expanding use of mandatory, employer-promulgated arbitration clauses have more than doubled since the 2000s. In examining the nature of this shift, I argue that it occurred through a gradual process of conversion in three institutional realms: 1) legislative conversion; 2) private sector conversion of public regulation; and 3) judicial conversion. Facilitated by a growing divide among Democrats on the value of arbitration, conservatives began to promote it in the 1970s and 80s as backlash to the expansion of statutory employment rights. I argue that they did so by converting the institutional infrastructures of labor and commercial arbitration, a process continued by the private sector and the Supreme Court. As such, this paper argues that conversion is the product of multiple actors targeting multiple institutions, unfolding over decades, and with consequences for both the literature on institutional change and conceptions of equality under the law.

Author

• Sarah Staszak, Princeton University