The Deck Is Stacked Against the Employee Under the Law of Arbitration

The first thing to recognize is that the deal is stacked against the employee. The law states that the employer can require its employees, as an condition of employment, to agree to mandatory arbitration. The employee does not have to sign anything. All the employer has to do is to put the requirement in its hiring documents. It does not matter whether the employee has agreed to it or even seen it. The burden is on the employee to discover it and then the employee is given the choice to resign. This is inherently unfair. However, the issue has been litigated and the Supreme Court upheld the employer under the guise of the Federal Arbitration Act.

The way the arbitrator is chosen appears to be neutral and fair, but it is not. For example, the American Arbitration Association provides a list of ten names of arbitrators for the parties to choose from. Despite what the American Arbitration Association claims, the list is heavily favored for pro-employer arbitrators. If the parties cannot agree on an arbitrator, the parties can eliminate all but one of the arbitrators. This means that the employee must accept a pro-employer arbitrator because the arbitrator is the only one left. There is nothing that can be done to protect the employee. The system must be changed.