Employers often require job applicants and employees to sign arbitration agreements preventing employees from bringing employmentrelated claims into courts and in front of juries. Instead, in agreements frequently favoring the employer, employees are forced to bring their claims before a single supposedly neutral arbitrator. In some cases, the arbitrator’s ruling is literally “arbitrary,” because arbitrators can often disregard the law when making their rulings. Arbitrators often decide who wins and who loses based only on what the arbitrator thinks or feels about the case, the attorneys, the parties, the witnesses or the testimony. There is usually very little chance of effectively appealing an arbitrator’s ruling.
The good news for employees is that sometimes employers and their attorneys go too far in writing up unfairly onesided provisions in arbitration agreements. Courts may strike down such agreements because they are “unconscionable” or shock the court’s conscience for being too unbalanced. For example, arbitration agreements might say that both employers and employees have to split the arbitrator’s fees, which can add up to thousands of dollars a day. Other arbitration agreements provide that an employee who wins the arbitration cannot recover attorney’s fees even when a law like the California Fair Employment and Housing Act requires that the winning employee should get attorney’s fees.
Still other arbitration agreements provide that all employees’ claims must be diverted to arbitration while many typical employers’ claims, such as injunctions concerning trade secrets, can be brought in court. Some agreements go so far as to say that the employer always gets to pick the arbitrator. Even if you have signed an arbitration agreement, you should not hesitate to consult with an experienced employment attorney to see if grounds exist for overturning the agreement and keeping your claims in court. And even if you are forced to go to arbitration, a good attorney can still achieve an excellent result for you either through settlement or winning the arbitration hearing for you.