Employment attorney Kelly Schoening of DBL Law provides basic background on the arbitration of employment claims. This slide show gives employers useful information on the pros, cons, ins and outs of the arbitration process.

1. Arbitration of Employment Claims
Cincinnati Bar Association
June 3, 2014
Kelly Schoening, Esq.
513-357-5284
Dressman Benzinger LaVelle psc
kschoening@dbllaw.com

2. What can you arbitrate?
 Employment law issues, including but not
limited to:
 Harassment
 Discrimination
 Wage and hour
 Most any type of employment claim
 Class action lawsuits-this can be a huge
benefit and cost savings

3. What cannot be arbitrated?
 Worker’s compensation
 Unemployment benefits
 Employee pension or welfare plans
 Claims not included in the agreement

4. What is the benefit of arbitration?
 No jury
 No court
 Nothing in public
 Try the case to a person selected by both parties
 Less time to settle dispute
 Final and binding-no appeals
 Save on legal fees

5. What is the benefit of arbitration?
 Arbitrators have experience, unlike jurors
 Unlikely to get outrageous awards
 Schedule based on party’s availability
 Perceived as more employer friendly

6. What is the downside of arbitration?
 Cost of arbitrator can be expensive
 Administrative fees are expensive
 Arbitrators can be less likely to dismiss case on
motion.
 It can be a final decision

7. What is the downside of arbitration?
 Discovery can be greater
 Absence of Rules of Evidence
 More likely to split baby

8. How do you arbitrate?
 Requires a valid and enforceable contract
 Supreme Court recently affirmed a decision allowing
an employer to use a mandatory arbitration
agreement
 Federal Arbitration Act strongly favors arbitration of
claims
 Federal Law preempts State law

9. Enforceable Arbitration Agreement
 Carefully drafted to be enforceable
 Employee must knowingly and voluntarily
consent
 It can be a condition of employment-employee has
choice not to take the job
 It should be a separate document-stand alone
 Do not embed terms in employment application or
handbook

10. Tips for Arbitration Agreement
 Clear language
 Arbitrator should be authorized to rule on
summary judgments
 Decide between one or three arbitrators-three is
more costly
 Discuss how to choose arbitrators
 Choice of law clause

11. Tips for Arbitration Agreements
 What remedies are available: equitable relief,
attorney fees, punitive fees, compensatory
damages, pre-award interest, damages
 Confidentiality-protection of trade secrets
 Arbitrate all claims
 Statute of limitations
 At-will employment not amended
 Be compliant with FAA

12. Tips for Arbitration Agreements
 Procedure for how to notify company of request to
arbitrate
 File a written request to arbitrate
 Who will administer? (AAA, AHLA, CBA, etc.)
 Consider having mandatory mediation prior to arbitration
 Agreement should be fair to employee (fees, etc)
 Agreement to arbitrate survives termination of
employment

13. Non-compete
 May not want to arbitrate non-compete issues
 Courts give quick relief and hold quick hearings on these
matters
 Makes more sense to litigate non-compete/equity type
issues

14. Agreement as way to avoid jury
 Can use arbitration to avoid jury
 Negotiate with opposing side to waive arbitration
if they waive jury trial
 It may make sense to try some cases to bench
rather than arbitrate
 Cost can be a factor

15. Case examples
 Oxford Health Plans v. Sutter, 133 S. Ct. 2064
Supreme Court 2013
 Plaintiff brought class action alleging delay and
underpayment
 Court ruled that claims must be arbitrated due to
an agreement
 Class actions must be specifically addressed in
agreement

16. Case examples
 AT& T Mobility v. Concepcion, 131 S. Ct. 1740
(2011)
 FAA trumped state law
 State law cannot nullify binding arbitration for
class action claims

17. Case examples
 Hergenreder v. Bickford Senior Living Group,
665 F.3d 411 (6th. Cir. 2011)
 Employee signed arbitration agreement
 Agreement was in employee handbook
 Not enforceable-not knowing

18. Case examples
 Quillion v. Tenant Healthcare Phila., Inc., 673
F.3d 221 (3rd Cir. 2012)
 Employee twice signed document
 Received a brochure outlining internal grievance
procedure
 Agreement was enforceable

19. Case Examples
 Ibarra v. UPS, 695 F3d 354 (5th Cir. 2012)
 Employee filed a grievance over termination
 Grievance failed
 Then employee sued in federal court for sex
discrimination
 Court ruled that case would proceed
 Gender claim not raised in union grievance and
not addressed in arbitration agreement

20. Case Examples
 Rogone v. Atlantic Video, 595 F.3d 1131 (2nd
Cir. 2010)
 Agreement had reduced statute of limitations
and fee-shifting
 Court required employer to strike provision in
order to enforce agreement
 Some courts will allow re-writing of agreement

21. Thank you!
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