There is a general sense that employers and providers of goods or services, when preparing agreements relating to contracts of employment or the sale of products, prefer the inclusion of mandatory arbitration provisions that incorporate a prohibition against class actions by employees or consumers. These restrictions are often condemned by both employee and consumer groups as having been designed to make it financially impossible for one who has a small claim to bring a claim. (Think of employees who claim that their pay has been reduced by a few cents an hour or a consumer who claims that a service provider has included an additional $10 fee per month). Nonetheless, the U.S. Supreme Court has made clear in cases such as Epic Systems v. Lewis, 138 S. Ct. 1612 (2018), that such agreements are valid.

Recently, however, employer groups have started to understand that mandatory arbitration requirements when coupled with prohibitions against class actions may, on occasion, represent more of a threat to them than to those upon whom these restrictions have been imposed.

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