Arbitration clauses have recently made the headlines as businesses and employers adopt them as terms of service or employment. These clauses require that individuals waive their right to a lawsuit – most notably class action lawsuits – in exchange for third-party arbitrations. On the surface, this may seem to be a move to strip individuals of their rights to due process, and this interpretation has led to boycotts and lawsuits. In a recent incident reported by the ABA Journal, the law firm of Kirkland & Ellis dropped arbitration clauses for associates and summer associations. The question that most would have on their mind is if these clauses are legal, and what arbitration means and how it works.
The legality of arbitration clauses is not without controversy. However, a recent supreme court decision issued earlier this year upheld these clauses as being legal and binding. This means that if you are injured at work or by a business you may be bound by these agreements. In the case of systemic abuse, this will also limit your ability to engage in a class action lawsuit. In the case of small damages where individual claims amount to less than $50 per head, such class actions may be the only approach to curbing abuses.
It would be inaccurate, however, to claim that arbitration will always favor the employer. The reason why many private businesses require arbitration is because the legal fees and costs associated with the practice may be less than in a standard court case. For individual claims, it may even be preferable to conventional litigation. Evidentiary standards are not the same as in a standard court case, however, and this may limit your ability to collect evidence of wrongdoing. Make sure that you have collected all relevant details before you notify your employer that you are seeking legal action in case discovery rules do not favor you.
If you have an arbitration agreement with your employer as a mandatory condition of employment there are ways to protect your rights from harm. Specifics are best discussed with a qualified attorney – while you can make arbitration work for you it requires an understanding of the law and the legal burdens these clauses place on both you and your employer. It is also worth noting that arbitration does NOT waive your right to an attorney. Regardless of the method being used to resolve a dispute – having an attorney on hand can help you to defend your rights and ensure you get deserved compensation if you have been injured as a result of employer negligence.
As in all matters of the law, a qualified lawyer is your best bet. If you’ve been injured in a workplace accident and are bound by a mandatory arbitration clause do not be intimidated. Personal injury attorneys are experienced in working within these systems and can help you identify arbitrators that will follow the due process of the law and ensure the best possible outcome. We can go through your agreement and determine legal options in advance. Your best defense against an unfair arbitration clause, however, is to make sure you understand the terms before you sign any contract. It may be difficult but being willing to walk away from a contract that demands unfair restrictions upon your constitutional rights is the only way to stop abuses from happening in the future.
