Do I have to agree to arbitration to work?

My employer made me to sign an arbitration agreement that waives my right to a jury. I signed it.  What now?

"You're hired.
Now please sign this arbitration agreement!"

Big business and insurance companies promote arbitration as a good thing for employees. It isn’t.

What is Arbitration?

Arbitration is “alternative dispute resolution” … resolving legal claims outside of court. The arbitrator, usually a retired judge, or an attorney, hears the evidence and decides … no jury.

“Big business” claims arbitration is a rapid, cost effective, time effective method to resolve claims.  Sounds good, right? That depends on whether you are an employer or employee.

Most of the time employees don’t have a choice. It’s either sign, or no job. No opportunity to bargain is offered.   Take or leave it no matter what it says.

Some arbitration agreements have an “opt out period.” Unfortunately, most employees just sign agreements and never read them.  They could have signed a piece of paper that gave away their first born child and would have no idea. Of those that do read them, rarely do they “opt out,” because they think it sends the wrong message to their employer.

So why are these agreements so bad from the employee’s perspective?

Employers wouldn’t push arbitration agreements if arbitration didn’t benefit them.  Which means that the employee losses something in the process; rights. 

Arbitration is rarely faster than court.

Arbitration is rarely faster than regular court proceedings. When it is faster, it is because someone short-circuited the standard process to get things to go faster. The ability to get evidence and testimony is limited.   Since employers control the vast majority of witnesses and documents limiting discovery hurts employees.

How much does it cost?

Arbitration for employees costs what the employee would pay to file a lawsuit in court. The employer pays the rest.

Sounds good?  Not really.  Since Arbitrators are paid by your employer and your employer gets to use the same ones again and again who do they favor? 

Most employees have never sued employers, so this process is new for most of them. Employers become hardened by the process, they know who the best/worst arbitrators are, and they are responsible for paying the arbitrator their time on the case.

Don’t I have a right to a jury?

A jury doesn’t weigh in. The arbitrator makes all decisions in arbitration.

One of our constitutional rights in California is to have our civil disputes heard by a jury. Art. 1 Sec 16 of the Ca. Const. states “Trial by jury is an inviolate right and shall be secured to all...” It also says two sentences later that a civil jury trial may be waived by consent. That’s why there is that bold sentence in most arbitration agreements alerts you to this waiver.

Summary

In summary the benefits of arbitration are slim to none, except for confidentiality which helps both parties (employers who don’t want other employees to know about the lawsuit or its outcome/ employee who doesn’t want future employers to have knowledge of a public legal proceeding in court against a former employer.)

If you were to refuse arbitration, most employers would refuse to hire you. But, you need a job and many employers have them so your next job offer could include one anyway. Not many options.

Action

If you think you may have signed an arbitration agreement are thinking about seeking legal action against your employer for something that happened to you at work and want some advise give us a call.

We represent employees in court and in arbitration when they sue their employers.  The best time to talk to us is while you are still on the job.  Call us at 714.508.6422 or email to helpme@firedme.com

Termination for Assisting the Disabled; Associational Discrimination

It would seem that common decency would stop employers from punishing employees for helping disabled people inside and outside the workplace. Surprisingly, it doesn't.

In Rope v. Auto-Chlor Sys. of Wash., Inc. (2013) 220 Cal. App. 4th 635, a California court of appeals for the first time interpreted Federal law to protect California employees from termination for assisting physically disabled people under FEHA’s associational discrimination provision. The court reasoned that when a company has a strong incentive to fire an employee because of their association with a disabled person, and does so, a claim may exist even when the intent is purely monetary.

In Rope the plaintiff asked for more time off from work to donate a kidney to his sister. He used a paid leave and asked for an extension when it became apparent that he would need additional time for the procedure.  He was fired two days before Donation Protection Act (“DPA”) became law, which would have protected his leave.  He asserted a claim for wrongful termination in violation of public policy. The trial court dismissed this and other claims. The court of appeals reversed and said he had a potential claim for associational discrimination and sent it back to be tried.

So how is this likely to impact employees who associate with disabled people?

Let’s put it into perspective.  A person with a family member or close friend with a disability may be perceived as someone who will need time off or will be unreliable or inattentive at work because of his or her association with the disabled.  Maybe the employer learns of the disabling condition and fears that their employee could potentially develop it due to a genetic relationship. Perhaps the employer fears monetary loss due to an increase in medical plan costs due to high medical costs associated with a disability or paid leaves or loss of training money.  If an employer were to act on any of these fears and terminate an employee or refuse to hire, an associational disability discrimination claim may exist.

These scenarios were mentioned in Rope, citing Larimer v. International Business Machines Corp. (7th Cir. 2004) 370 F.3d 698 the seminal federal case. However, Rope only considered the “expense” or monetary loss scenario. The Rope court confirmed that FEHA exists to provide greater protection than the Americans with Disabilities Act (“ADA”). Larimer interprets the ADA.

How does this relate to statutes that protect associations with disabled persons?

An employer, under the California Family Rights Act, may have an obligation to provide time off to care for the serious health condition of an immediate family member or spouse if the employee meets eligibility requirements.  These employees may have dual protection.

But what about non-relatives and those family members that do not satisfy the seniority requirements, full-time employment, and employer size requirements of CFRA?   Associational disability discrimination provides them with protection should an employer terminate them or deny employment because of their association with a disabled person.

The image in this article was provided courtesy of Toa55 / FreeDigitalPhotos.net