Concepcion arose from cellular telephone contracts that included arbitration clauses requiring arbitration of all disputes... but did not permit classwide arbitration. And there's the rub. Under California law (called the Discovery Bank rule), class waivers in consumer agreements were unconscionable in certain circumstances and therefore unenforceable. This rule conflicts with the Federal Arbitration Act, and as we see in Concepcion, it also conflicts with the Supreme Court's current love affair with arbitration generally.
How does this tie-in to employment law? Well, replace cell phone contracts with employment contracts. Would the analysis be different? It's tough to say for certain, but I suspect employers will view this as a green light (or at least a flashing yellow) to tie employees in to arbitration agreements with class waivers. And it gives them a solid argument for enforcing those agreements.
Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.