Forced Arbitration

Today, one of the fundamental rights we have as Americans—indeed, something that makes America truly unique compared to the rest of the world—is under constant attack.

What is this right? The right to trial by jury.

In particular, employers large and small, and their armies of attorneys have waged an all-out war against this fundamental right. How? Employers continue to force current and potential employees to waive their right to a trial by jury (or even a trial by judge) as a condition of employment. That’s right—to get a job, many employers require you to give up your right to a jury trial for any future dispute between you and the company. This happens most often when an employee ends up the victim of unlawful discrimination by the employer, like when an employer discriminates against an employee because of their race, sex, religion, etc.

Instead of a jury trial, employers have created an alternative method of resolving disputes—forced arbitration. Rather than a judge and a jury, one person—usually a lawyer, and always paid for by the employer—acts as the judge and the jury. While employers and alternative dispute resolution companies like the American Arbitration Association peddle the fairy tale that arbitrators are impartial third parties, it is indeed just that—a fairy tale. Most times, the arbitrator is someone who has spent his or her legal career representing companies, which means they are anything but neutral. In fact, nine times out of ten, the arbitrator is someone who is beholden to the employer either by ideology or financial interest. Furthermore, the employers pay for the arbitrators’ services—usually tens of thousands of dollars. Thus, if an arbitrator wants repeat business from the employer, it is in his or her bests interests to side with the employer. And that is what often happens. That is not to say always—but it is often. Often enough that studies have shown the value of employment cases subject to forced arbitration is drastically reduced. While employers are reluctant to say just how one-sided this process is, the thousands of lawyers who represent them are not. One recent mailer from a collection of corporate lawyers touted the following reasons why employers should adopt forced arbitration plans. “Arbitrations offer finality, as there is a very limited right to appeal. Arbitrations are private. Generally, damage awards to employees will be less than if heard in a traditional court setting. And employers can avoid liability for large lawsuits like collective actions for failing to pay their employees a minimum wage or overtime.” Does that sound like a fair and balanced process for you?

In other words, corporations, aided by their armies of high-priced lawyers, think they have found a way around their legal obligations to treat employees equally without regard to their race, color, religion, sex, national origin, pregnancy, age, or disability. Remember that when you go to look for work. While we recognize everyone needs a job, you would be wise to ask yourself on the front end this one simple question: “Does this employer, which claims to follow the equal employment opportunity laws, want to force me to waive my right to a jury trial?” If the answer is “Yes,” then you might want to consider working elsewhere. Because if an employer wants you to waive your right to a jury trial, rest assured that the employer has no plans to follow the equal employment laws.

Nevertheless, our firm has and will continue to fight for our clients both in court and in arbitration. If you feel you have been a victim of discrimination, retaliation, sexual harassment, or were not paid properly – contact Matt Scott today at (214) 238-8444.