Can I Sue if I Signed an Arbitration Agreement?
By Steven J. Ellison, Esq. | Legally reviewed by Joseph Fawbush, Esq. | Last updated February 21, 2023
In some instances, you may be able to sue if you signed a valid arbitration agreement. While courts generally favor arbitration agreements, they will allow you to file a lawsuit if you didn't understand your rights or your claims fall outside of the scope of the arbitration provision. Establishing this, however, can be a challenge.
While arbitration agreements can be found in many places where you form a contract, one of the most common circumstances people encounter them is in employment agreements. This article will use employment agreements as an example, but most of the general principles discussed here apply to any arbitration agreement. If you have one in your employment agreement and have a dispute with your employer, you may want to consult with an employment attorney who can give you legal advice about your legal claims and your chances of getting into court despite the arbitration provision.
What Is Arbitration?
Arbitration is a way to resolve a dispute without having to go to court. Generally, arbitration is an alternative dispute resolution procedure in which the parties agree to submit their dispute to an impartial third party (the arbitrator) who makes a binding decision. An agreement to arbitrate a claim is called, unsurprisingly, an arbitration agreement.
Arbitrations have several characteristics:
- They are consensual (the parties must agree to arbitration)
- The parties select the arbitrator (often a retired judge) or arbitrators
- Arbitrations are generally confidential
- The decision of the arbitrator is legally binding on the parties
- The arbitrator's decision is relatively easy to enforce in the courts.
Unless the parties make it expressly clear in their employment contract that state arbitration law governs, the Federal Arbitration Act (FAA) will apply to their arbitration. The FAA establishes broad parameters, most of which can be modified by the agreement of the parties, for how an arbitration begins, proceeds, and resolves.
How Does an Arbitration Work?
Many arbitration agreements will set out specific rules governing the arbitration. Sometimes, rather than include rules in their contract, the parties will agree to follow an organization's rules, such as those of the American Arbitration Association (AAA).
The rules agreed on by the parties will set out how to start an arbitration. Generally, the arbitration process begins when one party to the dispute submits a demand for arbitration. The party submitting the claim is typically called the claimant; the party opposing the claim is called the respondent. The claimant's demand may include a description of the nature of the dispute. Then, the respondent may submit a response to the claim.
Following that, the parties select an arbitrator. They might propose their own arbitrator or, if they agreed to follow the AAA's rules, they might select one from the AAA's roster. Once the parties agree on an arbitrator, they then prepare for the arbitration. They will gather evidence and exchange documents, all in a manner agreed to by the parties or contained in applicable arbitration rules. The parties typically then submit written arguments to the arbitrator before the arbitration.
At the arbitration, the parties will present their respective cases. In many ways, the procedure is like a court hearing before a judge. The claimant presents their evidence and calls any witness they might have. Then the respondent presents their evidence and offers the testimony of their witnesses. Once the parties have finished, the arbitrator will consider the matter and then issue a written decision. If the claimant wins and needs to enforce the arbitrator's award, they can file a petition with an appropriate court.
Arbitration Pros and Cons
Many lawyers are big fans of arbitration as a way to resolve disputes. Here are some of the reasons why:
- Speed: arbitrations are generally concluded in less time than it takes to resolve a court case
- Expense: arbitrations often (but not always) are less expensive than court cases
- Choosing an arbitrator: the parties have some say in who will decide the dispute as opposed to being assigned a judge to the case (which can be particularly helpful in cases involving science and technology)
- Informality: arbitrations tend to be less formal and more flexible than court cases
Other lawyers believe that the downsides of arbitration don't outweigh the upsides. Some of these include:
- No jury trial: if you agree to arbitration, you lose the right to have a jury of your peers decide the facts of your case
- No right to an appeal: Unless the parties agree otherwise, you generally don't have the right to appeal an arbitrator's decision if it goes against you
- Individual Claims: Most modern arbitration clauses require you to give up the ability to group your claims with similar claims of others and have them resolved in a single proceeding in a “class action" as you could in court (the U.S. Supreme Court recently has upheld class action waivers)
- Expense: sometimes arbitrations are just as expensive as court cases
- Terms: the party that wrote the arbitration provision largely controls the terms and conditions of the arbitration.
Whether arbitration is a good idea in your situation depends on, among other things, the relationship that you have with the opposing party. One relationship in which arbitration clauses are becoming more and more common is the employer-employee relationship.
Arbitration Provisions in Employment Agreements
According to the Economic Policy Institute, more than 60 million American workers are bound by mandatory arbitration provisions as a condition of employment. There are many reasons why employers like them so much.
First, requiring an employee to arbitrate a claim on an individual basis reduces the amount an employer can be required to pay. Lawyers call this “liability exposure." Arbitration provisions that prevent you from grouping claims into one proceeding substantially reduce an employer's liability exposure.
Second, the employer, who drafts the arbitration provision, decides the terms of the arbitration. Most employees lack the negotiating power to persuade an employer to modify or even drop an arbitration provision. So the dispute with the employee is resolved through arbitration according to the terms the employer drafted.
Third, arbitrators are supposed to be neutral, but this isn't always apparent. Large companies that face similar lawsuits from their employees may use the same arbitrators over and over again. They develop relationships with the arbitrators through employment arbitration and are inclined to choose arbitrators that they believe, based on their experience, will decide the dispute in their favor.
Enforceability of an Arbitration Provision
If a party needs to enforce an arbitration provision, they file a petition with an appropriate court. But the issue just as commonly comes up within the context of an actual lawsuit. An employee sues, and the employer files a motion to compel arbitration in accordance with the terms of the arbitration provision.
Public policy favors arbitration because, among other things, it resolves disputes without need for court resources. Generally, courts will enforce an arbitration provision so long as:
- The party entered into a valid contract with the understanding that they were giving up the right to a jury trial
- The dispute falls within the scope of the arbitration provision
Let's deal with each of these in turn.
When considering whether to enforce an arbitration provision, courts first look to see if the agreement containing the provision is otherwise a valid contract. A contract is valid if it consists of an offer, acceptance of that offer, and a bargained-for exchange of something of value.
If the contract is valid, the court will then look to the arbitration provision itself. As long as the parties understood that they were giving up their right to have their dispute resolved in court (including the right to have a jury decide the facts of their case), a court will most likely uphold the arbitration provision.
That's why arbitration provisions are often so long. The employer will specifically identify all of the rights that you are giving up (especially the right to a jury trial and the right to appeal), state that you had the chance to consult with a lawyer, and acknowledge that you knowingly and willingly give up these rights and agree to arbitrate any disputes.
This is also why your employer may require you to sign or initial the arbitration provision separately. In fact, some states require a separate signature or initial under state law. A court may not enforce an arbitration that's tucked into an employee handbook.
Scope of the Arbitration Provision
If it finds that the arbitration provision is valid, the court will next look at the nature of the dispute. If the dispute is covered by the arbitration provision, the court will order the parties to arbitrate their claims. If not, your lawsuit in court will proceed.
This is why arbitration clauses in employment agreements are so broad. They may say something like, “any and all disputes of any kind, whether in law or equity, between the parties shall be resolved by binding arbitration according to the rules of the AAA." A clause that broad would cover virtually all employer-employee disputes, including those over wages, benefits, family and medical leave, and wrongful termination.
That's where a creative employment lawyer can be helpful. They can analyze your employment contract and give you advice about whether your dispute may be outside the scope of an arbitration provision.
Exception: Sexual Assault and Sexual Harassment
No matter how broad its arbitration clause may be, your employer cannot force you to arbitrate a dispute involving allegations of sexual assault or sexual harassment, unless the parties agree to arbitration after the allegations giving rise to the claim of sexual assault or sexual harassment occurred. This is due to a federal law President Biden signed in 2022. You can choose to arbitrate your claim, but you cannot be forced to.
An Employment Attorney Can Help
Forced arbitration may not be in your best interest, but if you want a job you may have to agree to it. That doesn't mean that every dispute you may have with your employer must be decided by an arbitrator, however.
If you are bound by an arbitration provision and want to know if it prevents you from suing your employer in court, you should consult with an experienced employment attorney. They can give you legal advice within an attorney-client relationship about whether your arbitration clause is enforceable and, if so, whether your claim may be outside the scope of the agreement.
If it is, they can represent you in the court system when you bring your legal action. And if it isn't, they can help you with the arbitration proceeding.
Contact a qualified attorney to represent your interests in the arbitration or mediation of your dispute.