In general, courts are highly critical of any restriction of facilitation that, without arbitration agreement, is otherwise available in public courts. As a result, most forced arbitration agreements now explicitly state that there is no limitation on claims or damages that the employee may receive. Any limitation of the remedies available to the courts greatly increases the likelihood that the agreement will be set aside by courts deemed unenforceable. The suitability for procedure is related to the manner in which the arbitration agreement was established. What was the negotiating power of the parties? There are limits that the courts have imposed on the way the employee is made to « consent » to arbitration. Factors that have been considered in determining whether an arbitration agreement is procedurally unacceptable include: 20. If I think I have reason to sue my employer, but I am subject to a forced arbitration agreement, what can I do? Among the factors that often come to the attention of the courts in determining whether an agreement is materially unacceptable is: yes. For a wide variety of reasons, the forced arbitration process is generally bad for employees. Mandatory arbitration deprives you of your right to access the public justice system. The denial of that access – without you being able to make a reasonable voluntary decision to waive that right – is a considerable loss. Nevertheless, in 2014, the National Labor Relations Board ruled to Murphy Oil that a forced arbitration agreement, in which workers waived their right to participate in collective rights, was an unfair work practice by the employer and was therefore unenforceable. It is important to note that when cases are heard by an NRB judge, the losing party has the right to challenge the review decision by the five-member full chamber and, finally, to challenge the decision in a federal court. It is therefore important to remember that a decision at the NRB level, positive or negative, may not go beyond the appeal process.
Federal courts have different jurisdictions for their decisions to enforce forced arbitration agreements. This also applies to the situation of organized jobs where workers are represented by trade unions. Trade union/management arbitration is often the end of the appeal procedure for workers covered by a collective agreement. For example, in Iskanian v. CLS Transportation Los Angeles LLC, the California Supreme Court ruled that while forced arbitration agreements class actions are generally enforceable, a PRIVATE Attorneys General Act (AGA) is not unnecessary. It is important to look at the law of the state that governs your employment contract to see if you have unique rights as a worker.