In early 1991, the U.S. Supreme Court issued its decision in Gilmer v. Interstate/Johnson Lane Corporation (1991) 50 U.S. 20 and found that an appeal under the Age Discrimination in Employment Act could be subject to mandatory arbitration based on an arbitration decision in an employee-signed registration form. Since gilmer`s Supreme Court decision, federal courts have issued several conflicting rulings on the applicability of various arbitration agreements that cause confusion and concern among employers. The main legal argument used to avoid arbitration is an argument that the agreement is „unacceptable,“ a legal term used to invalidate an agreement that is not negotiated by the parties and unfair to the worker and several courts. When the employees filed their complaint, the employer filed a motion to force the arbitration. The court rejected the application in which the arbitration contract was a zero „responsibility contract“ (in which the worker had no opportunity to negotiate his terms) and also found that several provisions of the contract were „so one-sided that it shocked the conscience of the court“. The court placed great importance on the fact that only workers who filed claims against the employer were required to settle their claims, but no visa versa. In addition, the court was insulted by the limitation of the damage and the lack of detection (de facto investigation) under the terms of the arbitration agreement. It`s true. Most U.S.
employers expect new employees to sign binding arbitration agreements before starting work or even in the middle of employment. Many employers make it a condition of employment in countries where this is permitted. No signature, no mission. It may seem obvious that the public justice system would decide whether the agreement that prevents a worker from accessing the public justice system is applicable. In 2010, the Supreme Court of the United States was held in Rent-a-Center, West, Inc. Jackson, that if a conciliation agreement contains a provision that the arbitrator determines the applicability of the agreement as a whole, if a party challenges that particular provision, then a district court can consider the applicability of that provision, but if a party challenges the applicability of the entire agreement, then the controls and the arbitrator decides whether the agreement is binding in its entirety. Thus, you can effectively prevent access to justice to decide whether you should have access to justice. The applicant returned to work in September 2017. He also amended his complaint to add an additional request. About a month later, the accused asked the complainant to sign a binding arbitration agreement. The agreement, among other things, waived the applicant`s right to maintain or join a group action.
Immediately after signing the arbitration agreement, the applicant was fired. Finally, not only are there often much higher costs associated with forced arbitration than with the use of the public judicial system, but recent evidence shows that employees who are often subjected to lawsuits by forced arbitration. This allows employers who violate worker protection laws to continue to do so without being held accountable for their actions. Kamran Shahabi is the managing partner of Valiant Law. He represents clients in complex labour, insurance, general liability and economic litigation disputes. The views expressed in this article are those of Kamran Shahabi. In a number of recent decisions, the California Appels Courts have effectively ruled that existing claims are covered by arbitration agreements. One such decision is Alanis v. Leonard Roofing, Inc., a statement by the California Second District Court of Appeal in Los Angeles of March 30, 2020.