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13. Estimates of mandatory arbitration coverage for minorities and women were calculated on the basis of publicly available data, as they were not measured directly in the survey. Adjustments in employment levels and percentage of female, African-American and Hispanic workers by sector are based on data provided in the Labor Force Statistics from the Current Population Survey (2017). A coverage rate was calculated by adding, in all sectors, the proceeds of the compulsory arbitration rate for the sector and the number of women or minority workers in the sector to calculate a total number of women or minority workers covered by compulsory arbitration, and then divided by the total number of women or minority workers. The number of male workers subject to compulsory arbitration is higher because of the higher number of men in the labour force, despite the higher rate at which women are subject to compulsory arbitration. While it may be reasonable to view the right to participate in a class action as a procedural right in the context of the FLSA, it is not possible to make the same argument with respect to class actions in lawsuits arising from the National Labor Relations Act (NLRA). Within the LNRA, the right to collective and concerted action is the fundamental right that protects status. Nevertheless, the question remains whether a composite arbitration and class action clause would deprive workers of their material right to act collectively under the National Labor Relations Act. In D.R. Horton, Inc., 357 NLRB No.

184 (2012), the National Labor Relations Board found that a mandatory arbitration clause in an employment contract requiring all measures on an individual basis infringed on the worker`s rights , a concerted activity according to labour laws. D.R. Horton`s decision was overturned by the Fifth Circuit. There are several other similar cases going on in other channels, and the problem can reach the U.S. Supreme Court. Mandatory labour arbitration has expanded to the point where it has gone beyond court proceedings as the most common procedure of deciding and enforcing the rights of American workers.

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