Butler Williams & Skilling Blog

Employers (Ab)Use Arbitration To Gain Unfair "Home Court" Advantage

Suppose you were involved in a dispute with your employer over whether you were entitled to pay and benefits for two years, and your employer suggested that, instead of filing a lawsuit and letting an impartial jury decide your case, you resolve the dispute according to a set of rules that your employer, with the help of its lawyers, drafted without your input; would you agree? How about if your employer suggested that the dispute be decided by a person that they pay to make the decision? Or that you go through a multi-stage process where you meet with various teams of management personnel, by yourself, over a period of months to discuss the case before you can even talk to the person who will decide who wins?  Or that even after you go through that lengthy process, you then have to wait several months in order to investigate the case prior to meeting with the decision maker, and that during that time your lawyer would be performing the same type of activity that would be involved in the court process, only under the employer’s rules you cannot ask for certain evidence regarding the employer's actions that would otherwise be available to you through the court system, allowing the employer effectively to cover its behavior? Or if once you get through all of that, you only have a limited number of witnesses that you can call to produce evidence on issues that you are required to prove? Or, if after all of that, you can only appeal a decision that was made without any basis at all? Or that, even if you prevail, you would not be entitled to recover your attorney's fees that you would be able to recover in the court system? Of course you would not agree to such a process; what reasonable person would?

Unfortunately, this type of “dispute resolution” process, known as arbitration, is becoming more commonplace among employers. Many employees who have claims for workplace discrimination, harrassment, or other violations are being required to resolve their disputes seeking the loss of their pay, benefits, and other damages, through this lopsided process. Moreover, many employers are even attempting to require employees to engage in this process without the employee’s agreement.  For instance, unwitting employees have had their employer’s put “small type” on timecards or complaint forms reading that any employee who punches the card in the time clock or completes and signs the form agrees to arbitrate all disputes with the employer.

Fortunately, help may be on the way. Congress is currently considering the Arbitration Fairness Act, which is aimed at curbing these abuses not only in the workplace, but also in consumer and franchise disputes, which also involve parties with great disparity in resources. The Act is aimed at returning arbitration to a fair process that can save time and resources to the parties and the court system when implemented fairly. You can find out more about the Act, and also send a letter to your representatives in congress supporting passage of the Act, by visiting the National Employment Lawyer’s Association website.

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