Over the years, most employees have always been excited about the prospects of starting a brand new job. That excitement I’m sure is even more magnified today where there are so few jobs to be had by those searching for them. In the flurry of excitement of starting a new job, the employee is usually given a very large pile of papers to sign and in most cases those papers are not explained to the employee so the employee signs them without question. It is this mystery pile of papers that usually contains the documents that come to haunt employees at later times. It is this pile of documents that typically contains the non-compete agreement. It is also this pile of documents that typically contains the dreaded arbitration agreement.
What is arbitration? For those who don’t know its a process where an employee agrees to allow a private person to decide your legal claims against your employer rather than a judge or jury. It is usually a more expedited process without the opportunity to conduct full discovery, as you would in court, and without the opportunity to have your case heard by a jury of your peers. In many cases, the filing fees are higher than to file a court case and in many cases the employee and employer are responsible to pay, on an hourly basis for the services of the arbitrator. These arbitrators can sometimes charge anywhere from $300 to $500 per hour. While in my experience it is a quicker way to resolve disputes, it is usually more favorable to the employer. Thus, the reason why so many employers try to get their employees to sign these agreements.
So as an employee what can you do? Well, first off, try to hamper your initial excitement and ask your employer or the Human Resources persons to allow you an opportunity to review these documents including non-competes and/or arbitration agreements with an attorney, so that you not only understand the contents, but also have an opportunity to negotiate the terms.
Even in instances where you have signed an arbitration agreement, in many cases they may not be enforceable if they have unfair terms or conditions. For instance, where they make you pay more fees to arbitrate than you would in court, so that it would hamper your ability to protect your legal rights, the agreement may not be enforceable. If the agreement does not allow you to seek the same remedies you would get in court such as compensatory damages, attorneys fees, court costs and punitive damages, the agreement may also not be enforceable. It the Agreement is one sided, making only the employee arbitrate, but allowing the employer to file in court, this may also make the agreement unenforceable. Finally, if the agreement makes you choose arbitrators from sources that may be biased in favor of the employer, this may also be a basis to seek to invalidate the arbitration agreement. These are just some examples of instances where your arbitration agreement may be deemed to be unconscionable and unenforceable.
To learn more about your rights under an employer arbitration agreement, speak to an employment attorney. Behren Law Firm and Scott Behren have litigated these issues and may be able to help.
