Law Students Push Back Against Mandatory Arbitration

American law students entering on-campus interviews for Big Law summer associate jobs this summer will be armed with one new piece of information: whether firms require associates to sign mandatory arbitration agreements.

Molly Coleman, a rising 2L at Harvard Law School, Cambridge, Mass., will be paying close attention. She’s part of the reason firms will be disclosing this information at all.

“This will absolutely be a key factor in determining where I decide to interview,” Coleman told Bloomberg Law.

More than 40 law school career services deans signed a letter May 14 asking law firms to complete a short survey regarding their use of mandatory arbitration clauses in employee agreements.

To participate in on-campus summer recruiting, firms will need to say if incoming associates will be subject to mandatory arbitration for employment-related disputes, and if so, if those agreements also include non-disclosure provisions. The results of the survey will be made public and shared with students at the participating schools June 8.

The initiative is the result of grassroots campaigns mounted by students like Coleman at top U.S. law schools, who believe mandatory arbitration agreements effectively force employees to sign away their rights to go to court if they ever experience illegal treatment in the workplace.

“It’s something that we just do not find acceptable as future employees of these law firms,” Coleman said.

“We’re hopeful that just the process of sending out the survey alone will lead to firms saying, ‘You know what, this is not what we stand for, this is not who we are, so we’re going to drop them,’” said Coleman.

Mandatory arbitration agreements can apply to non-sex-related discrimination claims, wage and hour claims, or other workplace disputes, but they have recently come under fire for their use in sexual harassment claims. According to the Economic Policy Institute, approximately 60 million Americans are subject to mandatory arbitration, which tends to favor the employer.

The law student campaigns began shortly after Harvard Law lecturer Ian Samuel tweeted pictures of Munger, Tolles & Olson’s employee arbitration agreements in late March. In his tweets, Samuel called attention to the fact that the agreement required incoming summer associates at the Los Angeles-based litigation firm to bring any sexual harassment claims to arbitration, rather than court.

Within 24 hours, Munger Tolles announced it had scrapped the arbitration clauses. The firm was shortly followed by Orrick, which announced it too would eliminate mandatory arbitration requirements for employees.

“I am opposed to all mandatory arbitration for any kind of employment dispute for anyone over anything,” Samuel told Bloomberg Law. But Samuel said he has long struggled to “get anyone to care,” and hoped framing the practice as harmful in the context of workplace sexual harassment might make the issue more tangible.

Samuel’s tweets caught the attention of students at top law schools, who quickly began organizing in response.

“The sexual harassment claims are probably just the tip of the iceberg on this, and there are a number of problematic or discriminatory practices going on in workplaces,” said Coleman.

“I think the public pressure on this issue is important,” said Vail Kohnert-Yount, a rising 2L at Harvard Law and graduate student union organizer. “A lot of firms have dropped their agreements, but a lot of firms haven’t.”

Through various means, including these petitions on Coworker.org to law school administrations at Harvard and Georgetown, students pressured their career services offices to require disclosure of mandatory arbitration clauses.

“The idea was that students would say, ‘Hey look, you’re the gatekeepers, you have the most power in this situation to make a change,’” said Steve Schultze, a graduating 3L at Georgetown University Law Center, Washington, who will soon be joining Hogan Lovells.

Coleman hopes the attention on law firm associate contracts will spark a larger conversation among her peers about other employment provisions that keep women silent but harm workers in all sorts of workplace disputes, she said.

“We’re part of this larger movement recognizing that” mandatory arbitration provisions “don’t work, that they don’t promote equity, that they don’t promote justice, and nobody should be subject to them,” she said.

At Harvard Law, students pushing for for transparency around arbitration agreements at law firms have created an informal working group called the Pipeline Parity Project. The group hopes to create a website this fall, Kohnert-Yount said.

She hopes the pressure on law firms will shed light on the use of mandatory arbitration for other workplace disputes, like wage and hour claims.

“We really view this moment as an educational opportunity for the future lawyers of America,” she said. “People can see, through the lens of sexual harassment, why arbitration is bad.”

Although Kohnert-Yount has no plans to work in Big Law, she hopes that other young lawyers who do enter big firms will use their influence to stem the use of mandatory arbitration at the corporations those law firms serve.

“This is an education for our peers, and by asking our peers to claim their rights, we want to protect other people’s rights too,” she said. “We don’t just want our schools to say don’t make associates sign arbitration agreements, we want to say don’t make any employees sign arbitration agreements.”

 

To contact the reporter on this story: Stephanie Russell-Kraft at srussellkraft@gmail.com.

To contact the editor on this story: Casey Sullivan at csullivan@bloomberglaw.com.