David Garland Quoted in “Dems Launch Legislative Broadside at Mandatory Arbitration”


David W. Garland, Member of the Firm and Chair of the firm’s National Employment, Labor & Workforce Management Steering Committee, was quoted in Law360, in “Dems Launch Legislative Broadside at Mandatory Arbitration,” by Braden Campbell. (Read the full version – subscription required.)

Following is an excerpt:

Democratic federal lawmakers unveiled a bill Thursday to block companies from making workers sign away their right to take employers to court, targeting the mandatory arbitration agreements businesses have increasingly used to limit their legal exposure.

The Forced Arbitration Injustice Repeal Act, sponsored in the Senate by Sen. Richard Blumenthal, D-Conn., and in the House of Representatives by Rep. Hank Johnson, D-Ga., would bar mandatory arbitration agreements not only in employment disputes, but also for consumer, antitrust and civil rights claims. Additionally, it would block agreements that stop individuals, workers and businesses from joining or filing class actions.

The FAIR Act was introduced in both houses Thursday.  

Mandatory arbitration agreements, which can differ in their mechanics but generally make workers and other individuals lodge claims in solo arbitration rather than court, are under the microscope following the U.S. Supreme Court’s Epic Systems v. Lewis ruling, which blocked a path workers had used to evade arbitration agreements.

These agreements have also faced increased scrutiny amid the #MeToo movement, with women’s advocates arguing they let employers sweep harassment accusations under the rug by forcing plaintiffs to bring them in private arbitration. Harassment victims may also be less apt to bring claims alone than in a group, and it may not be economical for attorneys to argue solo claims, advocates say. …

David Garland, who advises businesses on employment law at Epstein Becker Green, told Law360 he is skeptical that [the bill] will [pass]. 

“We’ve seen bills for years, and I expect that we’ll continue to see them,” he said. He noted, however, that the Clinton and Obama administrations passed the Family and Medical Leave Act and the Lilly Ledbetter Fair Pay Act, respectively, as some of their first moves.

“There is interest, at least in the last two Democratic White Houses, in legislation in this area," said Garland, who chairs EBG's employment steering committee. "If we have a Democratic president in 2021, that would probably give a bill like this its best opportunity."

Garland added that employers adopt arbitration agreements for several reasons, including that arbitration is generally faster and cheaper than litigation.