The Employment Due Process Protocol at Ten: Twenty Unresolved Issues, and a Focus on Conflicts of Interest

The 1995 Employment Due Process Protocol, which suggested minimum procedural safeguards for employment arbitration agreements, was drafted in the early years of employment arbitration, before the drafters could anticipate many of the issues now facing the courts. This article discusses twenty issues either that the Protocol did not address or that probably should be reconsidered in light of subsequent developments. These twenty issues are grouped into six categories: contract-formation issues, such as notice, consent, unilateral modification, non-reciprocal agreements, and consideration; barrier-to-access issues, such as filing fees, costs, altered statutes of limitation, forum selection clauses, and class-action prohibitions; process issues, arbitrator-selection procedures and restrictions on discovery; remedies issues, such as damage limitations and attorney-fee provisions;  FAA issues, such as the role of the EEOC and the scope of the FAA's transportation workers exception; and conflict-of-interest issues. The Protocol currently requires only that potential arbitrators disclose potential conflicts; by arbitrating, the parties consent to the conflict. Recent social science literature, however, suggests that this disclose and consent approach does not sufficiently protect unsophisticated parties such as pro se employees, and that it may even exacerbate the conflict. Thus, a disqualification rule may be a more appropriate response to conflicts of interest.