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Binding Arbitration of Employment and Wrongful Termination Cases

binding-arbitration-wrongful-termination
Many empl0yers make their new hires or existing employee sign a mandatory arbitration agreement which states that an employee must bring all disputes with that employer to arbitration and not in court. This is a typical practice that benefits employers although sometimes there are advantages to these agreements for employees as well.  

The first thing your attorney should do is to review the arbitration agreement and determine if it's valid and enforceable. The courts articulated a number of factors which determine whether the agreement you signed is in fact valid, known as Armendariz factors. Once it's determined the binding arbitration agreement is valid, your attorney will submit your claim to one of the arbitration organizations such as AAA (American Arbitration Association) or JAMS (Judicial Arbitration and Mediation Services).  From that point, your case will be handled in substantially the same way by an arbitrator as it would be by a court where your case would have been filed.  

The main advantage of arbitration as opposed to a trial for employers and the main reason they favor such agreements is the fact that they won't have to face a potentially angry jury who will hit them with a huge verdict based on personal biases and emotions. Arbitrators are known to be more conservative, and they issue very large awards far more rarely than a jury would. Obviously, this only matters in cases that have a significant emotional appeal (i.e. long term employment at a large company coupled with egregious harassment or discrimination).  

There is a number of benefits to arbitration for the aggrieved employee as well. The employer has to pay the arbitrator's hourly fee, which increases  a pressure on the employer to settle the case, especially if it's a smaller case. The employer would have to think whether it's worth spending $20,000 - $50,000.00 on the arbitrator's fees considering the value of the case. Also, the fact that the arbitrators are generally more conservative and are not guided by emotions when they issue decisions can actually be helpful to claimants, in cases where there is damaging evidence against the plaintiff (such as recent criminal history, rude e-mails to manager, bad performance reviews, or if the claimant's personality is less than warm and fuzzy).  

Generally, the arbitrator's decision is not subject to appeal except in the most exceptional circumstances.  Because so many arbitrators are pro-employer (since they get most of their business from employers) and because that one person will be making all the decision on your case, it's critical to choose an arbitrator who is known to be both fair and knowledgeable in employment law and wrongful termination issues. You don't want to be in a situation, where the arbitrator would have to be learning the basics of wrongful termination laws through your case. Don't assume that just because a potential arbitrator is a retired judge, who sat on the bench of 20 or more years it means that he knows employment law. It really doesn't. It only means that he was presiding on many hearings and trials, but it doesn't mean that he keeps up with the rapidly changing employment laws and will be able to correctly rule on the specific issues of your case.

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Law Office of Arkady Itkin

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Law Office of Arkady Itkin - San Francisco & Sacramento Injury and Employment Lawyer
We represent employees and employers in employment and wrongful termination cases, as well as victims of serious injuries in San Francisco, Oakland, Sacramento, San Jose, Palo Alto, San Mateo and throughout Northern California. We all represent businesses and start-ups in a wide range of business and employment issues and disputes. 


57 Post Street, Suite 812, San Francisco, CA 94104; Tel. (415) 295-4730; Fax. (415) 508-3474; [email protected]
  • Home
  • Employment Law
    • Wrongful Termination >
      • At-Will Employment
      • Termination After Unfair Warnings and Write-Ups
      • Union Grievance, Workers Comp and Wrongful Termination
      • Labor Code 970 Claims
      • Promissory Estoppel and Employment Contracts
      • Implied Contract Claims
    • Discrimination >
      • Proving Discrimination
      • Age Discrimination
      • Disability Discrimination >
        • Protected Disabilities
        • Medical Leave / Disability Accommodations
        • Job Reassignment As A Disability Accommodation
        • SSI Disability Benefits and Your Court Case
        • Sample Request for Reasonable Accommodation
      • Pregnancy Discrimination
      • Race Discrimination
      • Sample Discrimination Complaint
      • DFEH and EEOC Investigations
    • Retaliation >
      • How to Prove Retaliation
      • Dealing with Retaliation While Still Employed
      • Retaliation for Complaining
      • Whistleblower Retaliation
    • Harassment
    • Defamation at Workplace
    • Prof. License Defense
    • Leaves of Absence >
      • Medical Leave as Reasonable Accommodation
      • FMLA Entitlement and Reinstatement to Work
      • CFRA Leave
      • Employers' FMLA Notice Obligations
      • Paternity Leave (FMLA)
      • Sample FMLA Leave Request
    • Wages / Overtime Claims >
      • Wage Claims
      • Employee or Contractor
      • Exempt / Non-Exempt >
        • Admistrative Exemption
        • IT Support Specialists Compensation
        • Computer Professional Exemption from Overtime
        • Recruiters / Account Executives Exemption
        • Complaining About Being Misclassified
      • Vacation Pay / PTO
      • On-Call Time Compensation
      • Deductions fr. Commissions
    • Unempl. Benefits Appeals >
      • Tips for EDD Phone Interview
      • Unemployment Benefits Appeal Hearing Representation
      • CUIAB Hearing Tips
    • Employment Law Blog
    • For Employers
  • Personal Injury
    • Five Tips For Injury Cases
    • Slip-and-Fall Injuries
    • Assault and Battery
    • Recorded Statements
    • Repairing Your Vehicle
    • Unpaid Medical Bills
    • Injury Law Blog
    • Medical Malpractice
    • Police Excessive Force
  • Practice Areas
  • About
  • Results
  • Submit Case
  • Contact
  • Resources
    • Consultations
    • Workplace Rights Checklist
    • Deposition Tips
    • Mediation Tips
    • Effective Mediator
    • Suing Current Employer
    • Severance Agreements
    • Workplace Investigation
    • Arbitration
    • Statutes of Limitations
    • Healthy Litigation Mindset
    • Trial Tips
    • Working Remotely
    • How To Find The Right Lawyer For Your Case