Labor lawyers say the recent trend of arbitration in employment litigation has been driven by an increasing number of courts deciding that arbitration clauses barring employees from starting class actions are enforceable—even though workers claim the clauses obstruct their right to a trial.

Many federal appellate courts, including the U.S. Supreme Court, have ruled in favor of mandatory arbitration. But one exception is the recent decision in Lewis v. Epic Systems by the U.S. Court of Appeals for the Seventh Circuit, which ruled that an arbitration agreement barring collective action by Epic Systems' employees violated the National Labor Standards Act and is unenforceable.

Shannon Farmer, a Ballard Spahr attorney who represents employers, said it is unclear whether the Supreme Court in its current eight-justice state will accept the opportunity to examine Lewis if it is put up for certiorari.

"Under typical circumstances it sets up pretty well for the Supreme Court to resolve the issue," she said.

But since these are atypical circumstances, according to Farmer, it's hard to say whether the justices will be cautious in selecting cases like Lewis for review.

"The question now is: what is the Supreme Court going to do about the kind of cases they're going to take in this arena?"