After the U.S. Supreme Court’s decision last term in AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011), it seemed that employees could no longer avoid prior agreements to arbitrate employment disputes by bringing their claims under the cloak of a class action. That understanding has proved to be short-lived, as several recent decisions including one by the National Labor Relations Board (NLRB) may have made Concepcion effectively inapplicable to class actions asserting employment law claims.
The lower court applications of Concepcion are reminiscent of the reaction to Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991), in which the Supreme Court first held that mandatory arbitration of federal employment law claims was proper. Then, as now, lower courts resisted the Supreme Court’s teachings, finding ways to disallow arbitration, until a pragmatic understanding was achieved for accommodating federal anti-discrimination law with the congressional preference for arbitration. The recent post-Concepcion cases appear to be, as Yogi Berra once said, déjà vu all over again.
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