Overview: An arbitration program is only as strong as the arbitration agreement from which it derives. In other words, if the arbitration agreement which spawns an arbitration program is considered unenforceable, the arbitration program is typically a waste of effort. Both the Federal Arbitration Act (FAA) and state law include provisions pertaining to the enforceability of arbitration programs. Thus, HR professionals who have a hand in creating arbitration agreements or otherwise advising in-house or external counsel regarding arbitration agreements, must be keenly aware of limitations on the enforceability of arbitration agreements deriving from both state and federal law.
Specifically, arbitration agreements may be declared unenforceable if they impose unreasonable procedural or substantive rules on employees, if they remove rights from employees while conferring an unfair advantage to employers, if they violate state or federal public policy considerations, or if employees are deprived of equal bargaining power. Essentially, the parties must be presented with a "meaningful choice" as to whether to participate in arbitration programs and if so, the parties must not be defrauded or otherwise deprived of their fair chance to prevail.
Trends: The popularity of arbitration programs is growing among employers with both unionized and non-unionized employees, particularly following the Supreme Court's 2011 decision, AT&T Mobility v. Concepcion. In wake of that decision, employers can also craft arbitration agreements that do not allow employees to bind together as a class to prosecute their claims. This, of course, confers a considerable advantage to employers in terms of resources to defend claims.
On the other hand, there has been a push to enact legislation called the Arbitration Fairness Act, which would render all pre-dispute arbitration agreements pertaining to employment claims invalid. Given the makeup of Congress, that legislation is not likely to be enacted, but employers should nevertheless be aware of the push and pull, so to speak, between employers and attorneys representing employees as it pertains to the prevalence of arbitration programs and the enforceability of arbitration agreements.
Author: Michael Jacobson, JD, Legal Editor
Updated to include information on a circuit court ruling regarding the National Labor Relations Act and class action waivers in arbitration agreements.
A federal district court ruled employers that use arbitration agreements should keep them out of employee handbooks, in order to avoid disputes over the enforceability of their agreements.
A Florida appeals court held that specific language in an arbitration agreement meant that the employer could arbitrate a workers' compensation retaliation claim, while preserving an exception the employer created to avoid arbitrating workers' compensation benefits claims.
The Arbitration section of the Investigations and Litigation chapter of the Employment Law Manual has been enhanced to include a discussion of several court decisions addressing conflicts between mandatory arbitration programs and either federal or state laws. Employers that use arbitration agreements or mandatory arbitration programs should review this material to ensure their arbitration agreements remain enforceable and that they cover the appropriate causes of action.
The Supreme Court held that arbitrators - not courts - may have the last word on the question of class arbitration, opening the door to more class arbitration in the employment context. Employers should review their arbitration agreements to determine if they are specific and clear about their intentions, including, but not limited to the question of class arbitration.
XpertHR's High-Tech Resource Center for HR: Terminations helps high-tech employers handle their most challenging employment issues by bringing relevant resources together in one place for easy access.
XpertHR provides up-to-date guidance for employers regarding the implications of two recent federal district court rulings, concerning the enforceability of arbitration agreements. Employers can use this information and guidance to shore up their arbitration agreements and arbitration programs to maintain enforceability.
HR guidance on the importance of crafting arbitration agreements designed to be enforceable, and guidelines for building arbitration programs from fair and balanced arbitration agreements.