Forced arbitration is the single most discriminatory force in employment law today. Forced arbitration allows companies to avoid judges and juries in favor of arbitrators who are paid by the company and who are less likely to find for employees who have been victimized by unlawful discrimination. Worse yet, forced arbitration oftentimes includes a class action waiver, which effectively insulates employers from smaller, yet significant, employment law claims over unpaid wages. The ultra-conservative majority on the U.S. Supreme Court has repeatedly sided with corporations over people on this issue. That is why the person appointed to replace former Supreme Court Justice Antonin Scalia, who passed away earlier this year, is of critical importance for all employees.
In the meantime, employees may have gotten some measure of relief from the Fifth Circuit Court of Appeals in New Orleans. In a recent Fifth Circuit opinion, Nelson v. Watch House Int’l, L.L.C., No. 15-10531 (5th Cir. Mar. 2, 2016), the court found an employment arbitration “agreement” unenforceable because the “agreement” allowed the employer to unilaterally (not at all a surprise) eliminate the alleged “agreement” to arbitrate without providing the employee advanced notice. This is another common practice—employers force employees to arbitrate disputes—unless the employer decides it doesn’t want to arbitrate. The Fifth Circuit, however, refused to accept this unilateral imposition of arbitration on the employee.
The upshot is this—if you were forced to sign an “agreement” to arbitrate any claims you might have against your employer, and that has discouraged you from seeking legal help, you may not be bound by the “agreement” if your employer set it up so one-sided that it is not enforceable. If you think you were the victim of unlawful discrimination or were not paid all amounts owed to you, don’t assume that “agreement” is a death sentence. Call Matt Scott—we might be able to help.