Arbitration Agreements for Employment Lawsuits; FAQs by My Employment Lawyer

Probably not. You need to decide for yourself whether an arbitration agreement makes sense for you. This article answers most of the frequently asked questions about arbitration agreements. As a general rule, however, most employees find that the costs of mandatory arbitration outweighs its benefits.

If you believe that you have to agree to arbitration, read this article to find out what you are in for and follow the tips for negotiating an employment agreement.

Do I have to agree to arbitration?

No. However, many employers require employees to agree to arbitrate claims as a condition to being hired in the first place. In other words, employers can force you to chose between arbitrating claims against them or else working somewhere else.

I was already working when my employer asked me to sign an arbitration agreement. Can my employer fire me if I do not sign the arbitration agreement?

Yes, if you are in Ohio. Unless you already have a contract for a specific period of time, an employer can require you to sign an arbitration agreement in order to continue your employment.

I already agreed to arbitrate my employment law claims. Does that mean I cannot go to court if I want to sue my employer?

Yes. I discuss some ways to avoid arbitration but, again, if you agreed to arbitrate your claims, you probably will not be able to go to court.

I already filed the lawsuit in court. Do I still have to go to arbitration?

Probably. If you agreed to arbitrate claims against your employer, the employer can ask the court to stop, or “stay,” the lawsuit. At that point the only way to pursue your case will be through arbitration.

I do not remember agreeing to arbitrate claims against my employer. Do I still have to go to arbitration?

The employer must only prove that you agreed to arbitrate your claims against it, not that you remember doing so. However, the agreement must be in writing. If the employer can produce a copy of the written agreement with your signature on it, you wil probably be bound by it.

The arbitration agreement that my employer showed me did not have my signature on it. Do I still have to go to arbitration?

Maybe. The employer has to prove that you agreed to arbitration, not that you signed an arbitration agreement. In other words, if the employer can prove that you agreed to arbitration even though you did not sign the agreement, you may still be bound by the agreement.

What exactly is arbitration?

Arbitration is a process for resolving legal disputes that uses private arbitrators hired by the parties instead of the courts. Once the arbitrator makes a decision, the parties usually cannot appeal it and the decision is binding, just like a court decision.

Why should I arbitrate my dispute?

You might not have a choice. I discuss some ways to avoid arbitration further in this article. For the most part, though, courts will enforce mandatory arbitration agreements.

Does arbitration have any advantages over court trials?

It depends on your point of view. Arbitrations substitute an arbitrator for a judge and jury. Employees usually prefer to have juries hear their case, while employers complain that jury awards get out of control. Apart from who decides the case, some say that arbitrations are faster and cost less than lawsuits filed in court.

Why do employers like arbitration?

Employers say that they prefer arbitration because it is:

A quicker hearing. Most arbitration hearings usually occur within a year. Civil suits can take two or more years to reach trial.
Not usually appealed. The parties have a very limited right to appeal the arbitrator’s decision.
Less expensive than litigation. This, however, is not necessarily true, especially for the employee.
Allows employers to change employment rights by an “agreement” with the employee that the arbitrator does not have full power to enforce those rights. Courts take a dim view of such restrictions and rarely enforce them.
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Is arbitration cheaper than court?

Not for the employee. Unlike court, where the judge and jury provide a governmental service at little or no cost to the parties, the parties have to pay an arbitrator and an arbitration service. Together they can easily charge $15,000 or more just to arbitrate a basic employment claim.

Employers point out that arbitrations may involve less legal work and therefore legal fees are less. These costs are not saved by the employee, however, who typically pays her lawyer on a contingency fee based on results, regardless of the amount of work that her lawyer must do.

I thought that I had a constitutional right to a jury trial. Can an arbitration agreement violate my right to a jury trial?

Your right to a jury trial is “waivable,” which means that you can decide not to ask a jury to decide your case. The key to arbitration is an “agreement” to arbitrate claims. By agreeing to arbitrate, you agree to give up, or waive, your right to a jury trial.

Continue to Part II: How to Avoid Arbitration of Employment Disputes

Do you want to consult your own employment attorney?

Schedule a consultation with Fortney & Klingshirn if you live in Northeast Ohio. If you live live elsewhere, search for a lawyer from your state.

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Arbitrating Employment Law Claims

Part I: Overview of Mandatory Employment Arbitration by Neil Klingshirn

Introduction

Part I: Overview of Mandatory Employment Arbitration
by
Neil Klingshirn