Do you feel that individuals’ rights are being compromised by arbitration clauses in their employment contract(s)? Why or why not?
It is now a common practice for most employers to include an employment contract agreement in their employment contract. However, not many employees are usually sure of what they are signing. If you have signed an employment contract over the last 15 years, then it is very likely that you have forgone your rights to sue your employer in case you are discriminated against at work, or if you get fired unfairly. Wondering how this happened? Well, there is a high chance that your employer included an arbitration agreement clause in the employment clause and you did not realize it. If you signed the agreement, then you agreed that you will not pursue any legal action against the company and your employer in court. Instead, any dispute that you might have against your employer will be settled through arbitration. The arbitration process is an alternative dispute settling system that comes with a number of implications compared to a case presented before a judge or jury. The fact that the employee is not informed of the presence of the arbitration clause in the employment contract(s) compromises the individual’s rights. The employee should be given the option to decide the manner in which they wish to have their dispute resolved, instead of a specific means being forced on them (FindLaw, 2018) .
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There are times when the employee will feel that their complaint needs to be heard by a jury or a court. However, being forced to follow the arbitration route means that the complaint will be heard and judged by a neutral third party known as the arbitrator. This individual is hired, either through an arbitration service or individually, to hear both sides of the case then make a decision. The fact that the employee has signed the employment arbitration agreement means that the decision made by the arbitrator is binding to them too. There are situations where an employee would feel that it would have been better if a jury listened to their case because the jury is often more sympathetic to employees. Arbitrators, on the other hand, are fair in general, and they tend to follow the law to the letter (Gilliam, 2018) .
It is the right of every individual involved in a dispute to present all the documents and evidence that they feel will help them present their case maximally. However, parties who go through arbitration get to request fewer documents and evidence from the other side unlike what would have been required if the dispute had gone through a trial process. For this reason, the employee is the one who ends up hurt most of the time because the employer usually has access to more of the documents and evidence needed during the arbitration process. In this case, the employee is denied the right to present their case in the best way that they could have, and this is a violation of their rights.
Furthermore, anyone involved in the process of dispute resolution should be given the chance to appeal the decision made in case they feel that the ruling was not fair. However, arbitration decisions are made with ultimate finality, where the parties involved are not given the chance to appeal. This finality is very rare in a court setting, and the parties involved are given the chance to appeal to a higher court. It is unfair that employees who do not like the results of the arbitration process cannot access a higher authority and have them take a look at the case (Gilliam, 2018) .
Individuals’ rights are being compromised by arbitration clauses in their employment contract(s) because they are denied the opportunity to choose their preferred dispute resolution process, they are limited in the amount of evidence that they can present, and they cannot appeal the results of the arbitration process.
Do you feel that Congress should step in and regulate whether employers can put arbitration clauses in their contracts for employment?
Several employees and dealers across the United States have been lobbying the Congress and state legislatures for years to protect their right to go to a jury in case of a dispute. State laws exempting employees from forced arbitration were eliminated on the grounds of federal pre-emption. A survey by the CFPM found that while most people know the meaning of arbitration, most are oblivious to the provisions. For this reason, there is a need for Congress to step in and regulate the power of employers to put mandatory arbitration clauses in their contracts for employment (J. Samolis & Wildenhain, 2018) .
The agreements in an arbitration clause are prepared in advance and then presented to the employee to sign. The challenge is that most employees end up signing the document before clearly understanding the clauses, and the effects are realized when it is too late. The Motor Vehicle Franchise Arbitration Act was the first ever bill that sought the banning of mandatory arbitration clauses. However, this regulation is yet to be implemented in the employment sector. The arbitration clause should be made optional, and its implementation should only be after ensuring that the employee has fully understood it. It is the responsibility of the Congress to step in and regulate the arbitration clause in an employment contract (Jost, 2018) .
References
FindLaw. (2018). Employment Arbitration Agreements - FindLaw. Retrieved from https://employment.findlaw.com/hiring-process/employment-arbitration-agreements.html
Gilliam, F. (2018). Beware of the Fine Print – Forced Arbitration Clauses in Employment Contracts | the Azara Group. Retrieved from http://www.theazaragroup.com/beware-of-the-fine-print-forced-arbitration-clauses-in-employment-contracts/
J. Samolis, A., & Wildenhain, C. (2018). Supreme Court Decision on Arbitration Clauses Could Significantly Reduce Employer Exposure to Class Claims | Massachusetts and Rhode Island Law Firm. Retrieved from https://www.psh.com/?t=40&an=64347&anc=742&format=xml
Jost, K. (2018). Arbitrating Disputes. Retrieved from https://library.cqpress.com/cqresearcher/document.php?id=cqresrre2016031100
