You may not know it, but your employer duped you into signing an arbitration agreement. Buried in all that paperwork when you started, was a hidden clause that said if you have a legal dispute with the company, you are required to file a private arbitration case and you waived your right to a jury trial in a public court. That does not feel good right? Use of arbitration agreements has skyrocketed out of control. (October, 2015, the NY Times). There are ways to escape this corporate nonsense.
1. You Must Have the Intention to Agree to Arbitration
Arbitration is not required or mandated when there is no agreement to arbitrate. An employee cannot be compelled to arbitrate unless he or she agreed to do so. The intent of both parties lies at the heart of the issue of whether an arbitration agreement should or should not be enforceable.
2. An Employer Cannot Force You Into An Agreement to Arbitrate By Fraud or Duress
If an employee can show some substantial relationship between the fraud committed or the misrepresentation made by the employer and the arbitration agreement, a court will void the agreement. Basically, if you lack the intent to agree to arbitration by way of demonstrating you were tricked into the agreement in some way with false representation, then you will not be forced into arbitration.
3. Unconscionable Arbitration Agreements Will Not Be Enforced
If you can show that the making of the arbitration agreement was unconscionable in some way, meaning you never meant to enter into it in the first place, then you can escape enforcement of the agreement. Similar to fraud or misrepresentation, the employer cannot trick you into entering the agreement through the use of fine print or convoluted language or unequal bargaining positions. You can also escape an arbitration agreement by demonstrating that the terms of the agreement itself are inherently unequal in favor of the employer. Courts require both of the aforementioned methods to show the agreement is unconscionable, thus unenforceable.
4. Failure to Provide a Valid Jury Waiver
You can further avoid arbitration agreements by demonstrating the agreement does not provide a valid jury waiver. You have a basic constitutional right to a jury trial in civil cases and any arbitration agreement must set out in bold print, easy enough to spot, some language saying you are waiving your right to a jury trial. Connecticut and many other states follow this rule.
5. Corporations Use Arbitration to Conceal Their Bad Behavior
Corporations tell you they rely upon arbitration agreements because this form of litigation is cheaper and quicker. That’s a whole lot of bull. Corporations use arbitration agreements to conceal bad behavior of their own management employees from the public and other employees who also want to sue their employers for the same bad behavior. There is no public data base to look up who brought an arbitration proceeding against their employer. It’s like it never happened.