Thanks to a decision by the U.S. Supreme Court involving a consumer class action claim, employers now have more options for requiring arbitration as to most class action and single-party employment litigation. In AT&T Mobility v. Concepcion, 131 S. Ct. 1740 (2011), the court found that the Federal Arbitration Act controlled over state laws that nullify binding arbitration for class claims. This decision has been applied to qualifying arbitration agreements in employee handbooks acknowledged by the employee. See Liman v. Cellco P’ship, Green v. SuperShuttle Int’l, Inc., and Cruz v. Cingular Wireless, LLC.
An employer’s right to require arbitration of class claims is not universal and does require specific qualifying elements. This article will address two of those key elements: consent and scope.