Originially from: World Arbitration and Mediation Review (WAMR)

AN EMPLOYER’S GUIDE TO UNDERSTANDING THE
ARBITRATION OF STATUTORY EMPLOYMENT CLAIMS
DANA T. BLACKMORE

Arbitration has become a common tool1 in the resolution of employment
and labor disputes.2 Employers increasingly require employees to sign predispute
arbitration clauses as a condition of employment under which they
obligate themselves to arbitrate workplace disputes.3 An employee may also find
himself bound by an arbitration clause in a collective bargaining agreement
between his union and his employer.4 An employer and employee also may enter

The author is a recent honors graduate of Thurgood Marshall School of Law at Texas
Southern University in Houston, Texas. She is currently associated with the law firm of
Magenheim, Bateman & Helfand, P.L.L.C., in Houston, Texas. The firm specializes in trial,
appellate, and commercial law. The author expresses her gratitude to Melissa Jordan and Kevin
D. Jewell for their help in editing the article.
1Nancy E. Spero, Practice Tips: Mandatory Arbitration Clauses in Employment Contract: Are
They Enforceable: The Answer, Increasingly, Is Yes, 20 LOS ANGELES LAWYER 19 (1997)
(suggesting that employers view mandatory arbitration clauses as a tool for reducing litigation, or
at least managing the expense of far-ranging discovery, delayed court dates, prolonged trials, and
large adverse jury verdicts).
2Stephen J. Ware, The Effects of Gilmer: Empirical and Other Approaches to the Study of
Employment Arbitration, 16 OHIO ST. J. ON DISP. RESOL. 735 (2001) (noting “employment
law” applies to all employees, while “labor law” applies only to employees represented by a
labor union).
3Penn v. Ryan’s Family Steak House, Inc., 269 F.3d 753 (7th Cir. 2001); Spero, supra note 1, at
19 (stating that employers increasingly have inserted “mandatory” arbitration clauses in a variety
of employment documents including employment agreements, employee handbooks, job
applications, and statements about promotions and raises. Pre-dispute arbitration clauses
typically state that the employee “acknowledges,” “accepts,” or “agrees to” the arbitration of
disputes that may arise in the future in the employment relationship as a condition of
employment, continued employment, promotion, or increased compensation); see also Glen R.
Fagen, Cole v. Burns: Mandatory Arbitration of Employment-Based Statutory Claims Gains
Momentum, 15 GA. ST. U.L. REV. 499 (1998) (noting that employers often require employees,
as a preliminary condition of employment or as a condition of continued employment, to sign
pre-dispute arbitration agreements); Gina K Janeiro, Balancing Efficiency and Justice: In
Support of the Equal Employment Opportunity Commission’s Policy Statement Regarding
Mandatory Arbitration and Employment Contracts, 7 AM. U.J. GENDER SOC. POL’Y & L.
125, 127 (1999) (arguing that an increasing number of employers require their employees to sign
pre-dispute agreements mandating that all employment disputes be resolved through binding
arbitration).
4Susan A. Fitzgibbon, After Gardner-Denver, Gilmer and Wright: The Supreme Court’s Next
Arbitration Decision, 44 ST. LOUIS L.J. 833, 834 (2000) (pointing out that union employees
generally have an arbitration provision in their collective bargaining agreement).