On May 24, 2016, I wrote an article entitled Four Ways to Get Out of Arbitration Agreements At Work. This article arose as a result of client concerns and my own professional frustration with how employees are duped into arbitration agreements. Fortunately, I am not the only professional angered by employer overreaching and underhanded contract formation with employees. The Employee Rights Advocacy Institute for Law & Policy just issued an article titled “Taking ‘Forced’ Out of Arbitration: How Forced Arbitration Harms America’s Workers”. The article closely parallels the points in my article, but does not discuss the issue of invalid jury waivers, which I believe is the key to defeating arbitration agreements.
The Institute’s article focuses primarily on employer’s undermining an employee’s constitutional right to access the court system. The article provides various methods of avoiding forced arbitration agreements and then argues for a Congressional Amendment to the Federal Arbitration Act. The article also portrays arbitration as more costly in comparison to federal court litigation but with substantially less damages, citing statistics from the Economic Policy Institute.
Overall, the article is a well-intended start in getting the discussion moving towards a more fairer resolution of this issue, quite possibly an FAA amendment. However, one article is hardly going to stop the current train wreck employers are all on. I would portray the current forced arbitration issue as an epidemic crisis that now has real lasting personal and economic effects that adversely affects us all. Forced arbitration is “forced nondisclosure” regarding very real legal concerns and controversies we all need to know about. Disclosure ensures transparency and without it we all suffer.
You need not look very far as you may also have an arbitration provision buried in your employment documents that you were unaware of.