“I’ll see YOU in court!” 

Whether in the modest halls of county small claims court or the walnut-paneled chambers of the federal district courts, in the United States, if you are wronged you can sue in an impartial court and ask for relief. Right?   

Wrong. 

Private justice is alive and well in the United States. From major procurement contracts to handbook policies affecting minimum wage earners, it has become quite common to require workers to submit claims and disputes to private, confidential arbitration and prohibit them from suing in court.

There are many facets to the private administration of justice, from cost and time savings to openness, fairness, and appeal rights. The benefits and issues with private justice are beyond our scope here, but one thing for sure is that private “justice” is a significant and far-reaching business. In fact, over 60 million workers in the United States are barred from accessing the courts by arbitration agreements.

Another thing for sure is that the United States Congress thought there was enough of a problem with contract provisions requiring arbitration of sexual assault and sexual harassment claims that it passed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, which was signed into law by President Biden on March 3, 2022. The law invalidates most contractual provisions requiring the arbitration of claims alleging sexual assault or sexual harassment. 

The law applies to agreements entered into prior to a dispute arising, such as employment agreements, personnel policy manuals that new employees sign, commission agreements, settlements agreements, etc. Parties already engaged in a dispute involving sexual assault or sexual harassment are free to agree to arbitration.

While the new law is limited in scope to claims involving sexual assault and sexual harassment, its passage with bi-partisan support and some of the debate in Congress leads to the hope that additional limits will be placed on unfair employment contract terms. 

For example, California’s “Silenced No More Act” prohibits employers from using non-disclosure and non-disparagement clauses in any type of employment agreement unless the agreement also allows employees to discuss information about unlawful acts in the workplace. The “unlawful acts” workers must be allowed to freely discuss now include harassment, retaliation, and discrimination generally. 

The issue of mandatory arbitration can come up in a wide variety of employment circumstances, including: 

At Pelton Graham, we get results – we don’t take every case, but if we accept yours, we promise we’ll do our very best to bring you the best possible outcome.

If you have any questions regarding your rights as an employee, applicant, independent contractor, or anything else related to the workplace, contact us for a no-obligation, no-cost consultation by telephone, video conference, or in-person at our nearest office.