Wednesday, November 23, 2011
Griffin Toronjo Pivateau (Okla. St. Business) has just posted on SSRN his article Private Resolution of Public Disputes: Employment, Arbitration, and the Statutory Cause of Action (forthcoming Pace L. Rev.). Here's a summary:
I wrote this paper in response to the Supreme Court's decision in Rent-A-Center v. Jackson. The aspect of that decision that most struck me was the Court's continued insistence on viewing arbitration in employment through a contractual perspective ("the employee made a deal and should stick to it"). This struck me as disingenuous. There are numerous aspects of the employment relationship that are not subject to contract -- wages, hours, workplace safety, antidiscrimination laws. So why then, for arbitration, a slavish devotion to contract principles?
The "simple" answer to this question, of course, is Section 2 of the FAA, which provides that arbitration agreements are "...valid, irrevocable, and enforceable, save upon such grounds as exist ... for the revocation of any contract." But that doesn't answer the question of why this statutory provision is interpreted as overriding subsequent statutory provisions which, for example, grant a jury-trial right to Title VII plaintiffs.