As most employees know, when you start a new job it is quite common to be asked to sign a stack of documents, which often include an arbitration agreement of some sort. While many employees do not read all of the documents they sign, you should know that submitting to arbitration means waiving your right to sue your employer in court if you have an employment dispute. So, if you find yourself alleging discrimination or retaliation in the workplace, your employer will likely pull out that arbitration agreement you signed and say, "Wait, you can't sue us!" So, what do you do?
Arbitration in employment actions is on the rise
Over the past 20 years, the number of employment disputes that are being resolved through arbitration has continued to increase. Since the Supreme Court endorsed employment arbitration agreements, employees continue to be left with very few options, despite the numerous challenges to "forced" or "mandatory" arbitration.
EEOC v. Waffle House
There has been one significant Supreme Court ruling that addressed employer's efforts to compel arbitration of employment issues. In 2002, the Court decided EEOC v. Waffle House where it emphasized the significance of the role the EEOC plays as an administrative agency in enforcing the protections of Title VII. The Court recognized the need to allow the EEOC to protect the public interest in eradicating workplace discrimination in the court system, regardless of the presence of an arbitration agreement.
Court decisions following the Waffle House ruling
Since the Waffle House ruling, there have been many cases involving an employer's attempt to force employees into arbitration while their EEOC charge was still pending before the EEOC. The issue is, many employers want to force arbitration prematurely in an effort to circumvent the Waffle House ruling. The goal is to force the employees into binding arbitration in order to establish a ruling early on that can be considered "res judicata." This legal term refers to a matter that has already been ruled upon by a court and may not be pursued further by the same parties. In other words, once a decision has been reached in a case, the parties are completely barred from recovery in any later court action that might be brought by the EEOC.
Can forced arbitration while a charge is pending be considered retaliation?
Many question whether these attempts to force arbitration while the EEOC is still investigating a charge constitutes retaliation for pursuing a claim under Title VII. This situation has been compared to charges of unfair labor practices brought under the National Labor Relations Act. When there is such a charge pending with the National Labor Relations Board, and an employer attempts to compel arbitration while that is still pending, it is considered illegal retaliation under the Act.
Is it retaliatory employment arbitration?
The concept of retaliatory employment arbitration refers to an employer's efforts to force arbitration in response to an employee filing a charge with an administrative agency, while that charge is still pending. This conduct by employers serves to deter the reasonable employee from filing a charge, when it is certain the immediate response will be forced arbitration. It also deprives employees from the rights and benefits they could receive when the EEOC decides to pursue their claims in court.
If you feel you have been the victim of discrimination or retaliation, or if you have any questions regarding your employment rights or forced arbitration, please contact Michel Allen & Sinor , either online or by calling us at (205) 265-1880.