[Excerpt] In this Paper, I will examine the operation of mandatory arbitration as an employment dispute resolution system to investigate the degree to which it increases or decreases equality of access to justice in employment relations. To address this question, I will use a model of individual employment relations that encompasses four key components.
The first component is the structure of rights held by employees. This includes the substantive employment rights provided by federal or state law. It also includes the institutional structure of procedures for enforcement of these rights, such as the incidence and structure of mandatory arbitration procedures.
The second component is the sources of power available to employees. In the traditional labor relations realm, union collective bargaining and strike power provided employees with a source of countervailing power against employers. In the individual rights realm, the threat of litigation serves a similar role as a major source of employee power checking the workplace power and authority of employers. A key question regarding mandatory arbitration is to what degree it enhances or diminishes this source of employee power.
The third component is the mechanism of employee representation. To effectively articulate and enforce individual employee rights, a well functioning mechanism for providing representation to employees is critical. The key question here for mandatory arbitration is how it affects the availability of representation by plaintiff-side employment attorneys who provide the primary mechanism of representation in the individual employment rights litigation system.
The fourth component of the model is the pattern of employment relations in the workplace. An effective individual employment rights system does not operate in a vacuum, but rather functions by altering employment relations behaviors in the workplace. Put alternatively, beyond providing remedies for violations of individual rights, the system should also exert a deterrent effect that encourages organizations to uphold these rights in the first place. Regarding mandatory arbitration, the question is whether or not it produces employment relation patterns in the workplace that better protect individual employment rights.