Arbitration occurs when a private tribunal, rather than a court, adjudicates a particular issue. Usually, the rules in arbitration are more relaxed than they are in civil litigation, but different tribunals or arbitration service providers have different procedures that can be very close to or very different from court procedures. Sometimes corporate employers force workers to agree to arbitrate their disputes based on a clause in their employment agreement. A worker is then forced to agree to arbitrate any employment issue if they want to be employed by the employer.
The judicial system, and in particular the United States Supreme Court, has enabled corporations to force their employees into arbitration to adjudicate all types of legal violations, including those related to employment discrimination and wage and hour disputes. This means that corporations have the power to write rules and design the procedures that apply to them in case they discriminate against their employees or fail to pay them their wages properly under law. Forced arbitration, as ratified by the judiciary, denies workers their right to bring a lawsuit against an employer for serious legal violations and have the dispute judged by a jury.
This is important because employees win less often in arbitration than in court. When they do win, they receive lower damages awards. Some arbitration clauses even require the losing party to pay the arbitration fees, including their employer’s attorneys’ fees. This deters workers from bringing their claims and exercising their rights.
Employers are regularly involved in arbitration, and they tend to win more often if they appear in front of the same arbitrator over and over again. This suggests there’s a bias toward them because of their routine involvement in arbitration.
In arbitration, parties don’t usually have the same access to discovery that they have in court. Employment discrimination claims depend very strongly on the right to get discovery. It is very rare for an employer to openly admit his or her discriminatory bias when taking an adverse employment action against an employee. Often, there is evidence of bias, but a plaintiff has to use discovery to unearth it. For example, an employer may have a written record of a supervisor’s evaluations of an employee that include remarks about her gender, but since discovery is limited in arbitration, a plaintiff alleging sex discrimination may not see it and for that reason could lose her case.
Perhaps most importantly, once the arbitrator decides the dispute, an employee has no right to appeal the decision. This gives the arbitrator too much unchecked power.
Often, employees do not realize the importance of an arbitration clause in their agreement. They are happy to get a job and don’t realize that they could be victims of wage and hour violations or discrimination and that they’ve signed away their right to take a complaint to a superior forum in which they have an equal shot at winning, or at least the right to appeal an erroneous decision. Most of the time, employees are intimidated by going to court anyway, since it means they’ll have to hire a lawyer and enter into an unfamiliar and expensive process.
It can be important to obtain representation from an experienced employment lawyer when you have a dispute with your employer. Contact us at (214) 528-6500 or via our online intake form.
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