Constitutional Viability of the Employee Free Choice Act’s Interest Arbitration Provision

Source: Philip B. Rosen, Richard I. Greenberg, Hofstra Labor & Employment Law Journal, Volume 26, No. 1, Fall 2008

Irrespective of one’s position on EFCA, the employer community, the labor movement, interest groups, politicians, lawyers, and academics all recognize that the bill in its current form would result in a fundamental change in labor law in the United States.

The merits of EFCA, which can and will be debated in the months and years ahead, are not the focus of this Article. This Article will examine the constitutionality of the mandatory interest arbitration provision of EFCA, with a particular focus on procedural Due Process and Equal Protection. While organized labor has indicated that it will not
allow the mandatory arbitration provision of the bill to be excised, there is a viable argument that EFCA’s mandatory interest arbitration provision does not satisfy constitutional requirements.

Part I of this Article sets forth the legislative history and specific provisions of EFCA. Parts II.A and II.B analyze the constitutionality of EFCA’s mandatory arbitration provision under the Due Process and Equal Protection Clauses. Part II.C summarizes a few other potential constitutional challenges.

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