Privatized Justice: An Empirical Analysis of Mandatory Employment Arbitration in the Post-Concepcion Period

Commentators and scholars alike have long worried that mandatory arbitration's rise as a common method of employment dispute resolution has significantly hampered employees' ability to vindicate their statutory rights and seek justice. These concerns have only grown in the wake of the Supreme Court's Concepcion ruling (2011),1 which paved the way for companies to ban the use of class-action in their contracts of employment, in addition to requiring that all employee claims be resolved through arbitration. This thesis examines the results employees have achieved in arbitration in the wake of the ruling. Specifically, it analyzes the outcomes of all mandatory employment cases filed with the nation's largest arbitration provider—The American Arbitration Association (AAA)—between 2012 and 2018. The goal of the study is three-fold: To determine how employee outcomes in arbitration compare with those achieved by employees in litigation post-Concepcion; To determine whether these outcomes have changed in the wake of the ruling; And finally, to assess whether arbitration is uniquely vulnerable as an institution to anti-employee bias. Leveraging the statutorily-mandated reportings of the AAA, I conduct both bivariate and multivariate regression analysis on case outcomes, and calculate summary statistics for the time-period in question. I find that, in the wake of the Concepcion ruling, the rate at which employees prevail has not changed significantly; it is still lower than estimates of comparable litigation. But arbitrators are increasingly using summary dismissals to dispose of employee cases prior to adjudication, raising questions of whether estimates of employee performance must be revised downwards. In addition, arbitration in the post-Concepcion period appears to significantly advantage the largest, most-experienced corporations in their disputes with employees. Unlike prior research, however, I find no evidence to suggest that this advantage is unique to the arbitral forum.