Concerted Arbitration

Companies have broad power to funnel employment disputes into individualized arbitration, thereby preventing employees from vindicating workplace rights in court. Recently, however, plaintiff-side lawyers discovered how to simultaneously file thousands of individual arbitration claims. Faced with this mass arbitration deluge, corporations have shifted from encouraging arbitration to trying to thwart it. This Essay argues that they cannot, because mass arbitration is a “concerted activity” protected by the NLRA. Even though, after Epic Systems, the NLRA no longer guarantees employees a right to bring class actions, it guarantees them a right to mass arbitration