Sunday, May 11, 2014

Spring Cleaning for Hospitality Employers Part 2

Arbitration agreements aren't right for every employer, but if you utilize one, now is a good time to determine if it is as comprehensive as it could be.  When reviewing your existing arbitration agreement, ask yourself these questions:

  1. Does it require the arbitration of all employment-related claims, and exclude claims for, by way of example only, workers' compensation and unemployment benefits, administrative charges, and claims for declaratory and/or injunctive relief?  
  2. Is it mutual, meaning it equally binds both employer and employee?
  3. Have you reviewed your handbook language to ensure that there are no conflicts between the handbook language and the arbitration agreement?
  4. Does it indicate which party or parties is responsible for arbitration filing and other costs?
  5. Do you ensure each employee signs a copy of the arbitration agreement upon hire, and retain that copy in the personnel file?
  6. Does it specify that the arbitrator can award all relief that could be awarded by a court, including the granting of a motion for summary judgment?
  7. Does it specify whether the parties will be required to utilize an arbitration administration service, such as the American Arbitration Association, or JAMS, or does it allow the parties to forego the expense and choose a mutually-agreeable arbitrator?
  8. Does it specify the parties do not require more than one arbitrator?
  9. Does it include a class action waiver?  If so, does it require any dispute regarding the waiver to be decided by a court, and not the arbitrator?
  10. Does it specify the minimum requirements for the arbitrator's experience and expertise?
  11. Does it provide deadlines for requesting arbitration?
  12. Does it define "employer" broadly enough to include affiliates, subsidiaries, parents, etc.?
  13. Does it specify that whether an issue is arbitrable is a matter for the arbitrator to decide, or a matter for the court? 
  14. Does it clearly state the parties waive all rights to a trial in court before a judge and jury on all claims?
  15. Does it require the arbitration proceeding and result to remain confidential?
  16. Does it provide that each side is responsible for its own attorneys' fees and costs, absent an award to the contrary?
  17. Does it include rules regarding available discovery?
This list is not exhaustive, but should provide an initial checklist for your review project.