Are Arbitrations As Bad As The New York Times Claims And, If Not, When Can They Be Enforced By Employers In Washington?

The New York Times just ran a series of articles discussing the prevalence of arbitration agreements in America. The articles criticized the arbitration agreements that corporations require individuals to sign, including arbitration agreements with employees, citing a lack of bargaining power. According to the Times, the prevalence of arbitration agreements constitutes nothing less than the usurpation of the constitutionally guaranteed right to jury trial. The articles were also critical of recent Supreme Court decisions upholding arbitration agreements under the Federal Arbitration Act. While not saying so explicitly, the articles' message appears to be that these decisions resulted from a concerted and well-funded campaign by corporations and a Supreme Court sympathetic to their interests.

Truth is, for many employment cases, arbitration is good for both the employer and the employee. Having a case heard by a professional who is trained and experienced in the messy job of resolving complicated employment disputes can be better for both parties than leaving the matter in the hands of 12 people who couldn't get out of jury duty. And the fact that arbitrations (unlike court proceedings) are not a matter of public record (and so cannot be found on the internet) may be good not only for the employer accused of discrimination or retaliation but for the employee also. Employees should not want the world to know about the sexual relationships or disputes they had with their boss, that they have a disability, that they were fired because they were bad at their jobs, or even that they are sufficiently litigious that they sue prior employers.

But arbitrations are no cure-all for employers either. They can be as time-consuming and disruptive as litigation, and sometimes they can be a lot more expensive. And if the employer is defending a case with a good legal defense but bad facts, a trial judge may be preferable to an arbitrator who can't get reversed on appeal. As with so many things in life, the right answer to the question whether an employer should try to enforce an arbitration agreement for a case is "it depends."

If, after deliberating the issue, the employer decides to arbitrate the dispute, the employer must be prepared to defend its arbitration agreement in court since the employee will likely claim it is unenforceable. Fortunately, state and federal law strongly favor the enforcement of arbitration clauses. Generally, an arbitration...