The Employee's Perspective: Mandatory Binding Arbitration Constitutes Little More Than a Waiver of a Worker's Rights - Chapter 30 - AAA Handbook on Employment Arbitration and ADR - Third Edition
Joseph D. Garrison
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Joseph D. Garrison is Managing Shareholder in Garrison, Phelan, Levin-Epstein & Penzel, P.C., New Haven, Conn., where he focuses his practice on employee rights and labor law. Mr. Garrison received a B.A. from Wesleyan University and a J.D. from Cornell Law School. He has extensive successful experience on both state and federal trial and appellate courts with employment law and discrimination cases and has been listed in The Best Lawyers in America since 1989.
Although employees always waive rights in the “contract” forcing arbitration upon them, the benefits of arbitration seem lost upon the employers unilaterally drafting that same contract. Routinely, the employer exempts non-compete, trade secrets and other potential claims that it may have against its employee from arbitration coverage. It is simply cynical to profess that all the benefits of arbitration apply to the discharged employee who claims statutory rights, yet those same benefits do not apply to the employer who desires to assert employment-related claims against the employee. The employee is pushed into an arbitration system; the employer is free to use the court system.
One of the most precious rights the employee gained from civilrights legislation was the right to a jury trial, as it allows the employer’s conduct to be judged by the employee’s peers. It is a transparent fiction that employees waive rights and remedies knowingly and voluntarily, just to obtain a trial before an arbitrator. The jury-trial right was an important component in the 1991 Civil Rights Act, and its new availability under the Act tempered the dissatisfaction that civil-rights advocates felt about caps on damages. Mandatory arbitration, wiping out the right to a jury trial, preserves only the management side of the bargain.