Arbitration or bust?

June 18, 2009 9:18 AM

The company I work for has announced the adoption of a "alternative dispute resolution" program. HQ is telling us that by continuing to work there after a certain date, I agree to be covered by this ADR and forfeit my right to take them to court. What are my options, beside quitting?

I work for a large, well-known multi-national corporation. Recently, said company announced the adoption of an "alternative dispute resolution" program to address employee complaints and disputes.

By and large, this new program doesn't appear much different than the current process--except that if the dispute in question can't be resolved in the normal process, it goes to binding arbitration via an external mediator.

The training material is specific: "...by choosing to continue to work for the Company aftey July 1, 2009, you are agreeing to be covered by [the new alternative dispute resolution system] after July 1, 2009." It goes on to point out that all covered claims that advance to a certain point must go to arbitration, they cannot be brought to court and will not be heard by a jury, and no class or collective actions are permitted.

"Covered claims" are those claims that a court would have authority under applicable law to resolve, such as employment discrimination & harassment claims, tort claims such as defamation or privacy invasion, wage-hour claims, claims under employment contracts, and trade secret or unfair competition claims.

I've been more-or-less happily employed by this company for nearly two decades. I don't have any beef with my employer, though who knows what may happen between now and retirement? I want to keep my options open, and arbitration seems designed to make sure I don't have options.

Between the current economy and some family health issues, I'm extremely reluctant to leave my job right now. At the same time, being told I have to give up my constitutional right to a jury trial raises my red flags. In addition, from what I know about arbitration in consumer products, it's always heavily stacked against the consumer. So here are my questions:

(1) What, if any, recourse do I have here? Should I go to our HR rep and express my concerns about this new dispute procedure? Can I just tell them, "Sorry, I do not agree to this"? (I suppose I should add that I am a full-time salaried employee; my department is non-union).

(2) Is arbitration in the workplace as bad as it is in the retail sales environment? I've seen articles in the CivilRights.org archives that lead me to believe this is the case, but if anyone else has experience or information that demonstrates otherwise I would appreciate hearing it. I'm trying to remain open-minded here and not let my emotions get in the way of any relevant data. Thanks in advance!

posted by anonymous to Work & Money (18 answers total)

Ooh, forced arbitration makes me mad. I don't really have any advice, but you may want to check out this. It has a person's first-hand experience, and also links below the article where you can sign petitions against mandatory arbitration. Consumerist covers a lot about forced arbitration, but mostly in a retail context. Here is another good website.
posted by ishotjr at 9:45 AM on June 18, 2009

Really interesting question. This Lawyers.com piece suggests that, rather than flat-out refusing to sign it, you could check to make sure certain arbitration rights are written into the contract.

A cursory Google search suggests courts (in California for example) have sided with employers in letting them foist these take-it-or-leave-it clauses on employees. Sux.
posted by Kirklander at 9:52 AM on June 18, 2009

I don't have experience with this but it occurs to me that if you do end up telling them "Sorry, I do not agree to this" it seems like you should do that in writing.
posted by XMLicious at 9:52 AM on June 18, 2009

How is this legal? Is this something the Republican Congress of the last 15 years wrote into law at midnight during a national crisis? With so many workers having no choice in the matter - especially during a recession - how can it be legal to allow a corporation to effectively negate a person's protection under the laws of our country?
posted by any major dude at 10:00 AM on June 18, 2009 [4 favorites]

NB: I assume you are in the US.

At the same time, being told I have to give up my constitutional right to a jury trial raises my red flags.

Well, not entirely. You can probably still go to court to contest the validity of the arbitration agreement itself. But on to your questions:

1) Your recourse depends a lot on where you are. If you are in a right to work state and have no employment contract, then you basically have no real recourse apart from a token protest. In this economy your employer can probably replace you easily.

2) According to this empirical study of employer/employee arbitration, "both employee win rates and damage awards in employment arbitration are significantly lower than in litigation." That contrasts with studies of business/consumer arbitration that have found comparable win rates between arbitration and litigation.

Finally, talk to a lawyer.
posted by jedicus at 10:03 AM on June 18, 2009

This proposed legislation to rescue you from the situation is pretty exciting.
posted by Kirklander at 10:08 AM on June 18, 2009

how can it be legal to allow a corporation to effectively negate a person's protection under the laws of our country?

The laws of our country include the Federal Arbitration Act and related laws that have been in force since 1925 with additions in the 70s, 80s, 90s, and more recently. Mandatory binding arbitration agreements, including agreements required for employment, have been upheld by the Supreme Court as recently as this year with perhaps the most important modern employee arbitration case decided in 2001.
posted by jedicus at 10:12 AM on June 18, 2009

At the same time, being told I have to give up my constitutional right to a jury trial raises my red flags.

IANAL but last I checked, you had a right to a trial by peers if you were convited of a crime, not if you wanted to sue your employer in your state:

http://www.ajs.org/jc/juries/jc_right_overview.asp

So it seems you don't have this "right" in the first place.

How is this legal? Is this something the Republican Congress of the last 15 years wrote into law at midnight during a national crisis? With so many workers having no choice in the matter - especially during a recession - how can it be legal to allow a corporation to effectively negate a person's protection under the laws of our country?

Sorry, what law do you think was written that brought this about? I'm quite far from Republican (little r or big R) but really, the government isn't forcing you to do anything. Neither is the company. They're merely changing the terms of your employment. Nothing says you need to work there. What if they came in and said "everyone here is getting a 20% pay cut and C level positions are getting 50% bonuses effective next quarter"? Would you expect some law to prevent that from happening? Really, work there or walk. If enough people walk, the company folds. That's how a free market works. What kind of personal protection do you want? A golden certificate that says "bearer is hereby entitled to job of chosing regardless of qualifications at a salary to be determined by the bearer"?
posted by Brian Puccio at 10:26 AM on June 18, 2009

IANAL but last I checked, you had a right to a trial by peers if you were convited of a crime, not if you wanted to sue your employer in your state

You should read your own link. As it points out, many civil suits (particularly those that seek money damages) are guaranteed the right to a jury trial by the 7th Amendment. Also, the 6th Amendment grants the right to jury trial to those accused of a crime, not, as you said, convicted of one.
posted by jedicus at 10:39 AM on June 18, 2009

It's not quite so simple, Brian Puccio. They're not proposing salary adjustments across the board - they're proposing that they not be held responsible for discriminatory practices. To adapt your analogy, it's like they came in and said, "All the black people are getting a 20% pay cut and heterosexual white males are getting 50% bonuses effective next quarter." Work there or walk? Uh uh. And, yes, there are laws against doing that, but without the ability to sue the only recourse would be to convince a prosecutor to go after them in criminal court. And while you might get a prosecutor to involve herself in the above extreme example, smaller scale instances of gender discrimination, sexual harassment, and more subtle forms of racial prejudice would all be virtually unprosecutable and therefore become more and more prevalent as those with power adjust to the idea that there are no consequences for abusing it.

OP, you've been there 20 years. You MIGHT be able to get away with getting a signed & notarized document that says you do not agree to this provision. But probably not. In this economy you don't really have the option to leave, but you should keep your ears open for jobs elsewhere nevertheless, and lobby for changes to the laws that let a company get away with this.
posted by philotes at 11:00 AM on June 18, 2009

without the ability to sue the only recourse would be to convince a prosecutor to go after them in criminal court.

This is inaccurate. The employees can still seek relief through arbitration. As the study I linked earlier points out, though, arbitration win rates in employee civil rights cases are lower than litigation win rates. The employees do appear to be giving something up, but they are not giving up all possibility of private legal action.
posted by jedicus at 11:17 AM on June 18, 2009

Jedicus, sorry, I totally ignored arbitration as a recourse because ever since hearing this story on NPR I pretty much discount it as a valid option. If a woman can be drugged, raped, and permanently disfigured by her coworkers but the company can shrug off all responsibility thanks to its arbitration-only clause, then arbitration is not a source of relief, it's a form of abuse.
posted by philotes at 1:55 PM on June 18, 2009 [2 favorites]

the company can shrug off all responsibility thanks to its arbitration-only clause

Halliburton did not shrug off responsibility. It and Jones agreed to determine responsibility through arbitration rather than litigation. Now, maybe that agreement should be invalidated, and that's what Jones is trying to do. But we don't know what would have happened if Jones went through with arbitration. It's entirely possible that she would have received significant compensation. She may still resort to arbitration if her attempt to have the arbitration agreement invalidated does not succeed.
posted by jedicus at 3:13 PM on June 18, 2009

Talk to a lawyer, but it sounds like they are holding more power in the situation than you are. IE, to disagree with this change, you would have to try and find a new job. They have one less person to lay off. Seems like a form of duress.

That said, no contract can violate laws. If they violate a law, you have the right to use the courts to get satisfaction.
posted by gjc at 5:35 PM on June 18, 2009

IANAL but last I checked, you had a right to a trial by peers if you were convited of a crime, not if you wanted to sue your employer in your state

You should read your own link. As it points out, many civil suits (particularly those that seek money damages) are guaranteed the right to a jury trial by the 7th Amendment. Also, the 6th Amendment grants the right to jury trial to those accused of a crime, not, as you said, convicted of one.

And as my link says, if you bothered to read all of it, the 7th Amendment only applies to federal cases. As I said, if you want to sue your employer in your state and not federal court, it does not apply. Your state's constitution and laws will determine if you have this right. If you want the text from the link that you're encouraging me to read, here it is for you:

The Supreme Court has repeatedly held that the Seventh Amendment right to a jury trial applies only to federal courts, not to state courts.

Should the OP want to sue for discrimination, the OP would, literally, have to make a federal case out of it before the OP could even start babbling about "constitutional rights" being signed away. To claim a constitutional right to a jury as a blanket statement is incorrect.

It's not quite so simple, Brian Puccio. They're not proposing salary adjustments across the board - they're proposing that they not be held responsible for discriminatory practices.

I think if they were, they'd be saying things like by choosing to work here after July 1, 2009, you hereby forfeit any right to file any complaints with any government entity, watchdog groups or bring an action against us in a court of law or seek other means of dispute resolution. Instead, they're simply saying go to arb if you think we've wronged you, we've got our own reasons for this and we're not going to get into it, take it or leave it. A far cry from your absurd suggestion that they not be held accountable.

To adapt your analogy, it's like they came in and said, "All the black people are getting a 20% pay cut and heterosexual white males are getting 50% bonuses effective next quarter."

Um, no, they're applying this same standard to all employees. Not just some, all. If a policy applies to everyone that sounds pretty equal to me. Nice straw man.

Work there or walk? Uh uh.

If this place is as bad as you make it out to be (thinking that the company and its owners and C level employees are free to discriminate at will and publicly) then I'm sure that no one will be working there shortly and that no one would buy this company's products again. They should be heading to bankruptcy any second with policies such as the one you've outlined above.

And, yes, there are laws against doing that, but without the ability to sue the only recourse would be to convince a prosecutor to go after them in criminal court.

Of course there's laws against your straw man argument, since implementing new policies, such as raises, based on race is clearly illegal, not to mention would earn some really bad PR. But, as I read it, requiring an employee to agree as a condition of employment to ADR is not illegal:

A. Compelling The Employee To Agree

Increasingly, employers are asking employees to sign arbitration agreements, and are discharging those who do not. For employees, this is perhaps the most distasteful feature of the current trend toward shifting from litigation to arbitration. Typically, the employer is in the driver's seat and can offer an arbitration agreement on a take-it-or-leave-it basis. The employee or prospective employee either signs or looks for another job. This practice raises two legal questions. First, if the employee signs the agreement under these circumstances, will the courts enforce it? Second, if the employee refuses and is discharged, will the employee have a claim for wrongful discharge?

An agreement signed under take-it-or-leave-it conditions is called an "adhesion contract" because the employee must either adhere to the offer or reject it. Although the term "adhesion contract" is often used as a pejorative, the vast bulk of all contracts are adhesion contracts, and they are nevertheless enforceable. In order for adhesion contracts to be unenforceable, there must be some provision in the contract that is so one-sided as to be unfair or oppressive. Agreements to arbitrate are no different. In Gilmer, the Supreme Court specifically rejected Gilmer's argument that unequal bargaining power should make his agreement unenforceable. Later court decisions uniformly hold that an arbitration agreement is not rendered unenforceable merely because it is an adhesion contract. Lagatree v. Luce, Forward, Hamilton & Scripps, 74 Cal.App.4th 1105 (Cal. App. 1999), and cases collected.

Donald Lagatree was a legal secretary employed by a law firm. When Lagatree refused to sign an arbitration agreement, the firm discharged him. Lagatree sued alleging that this was a wrongful discharge in violation of public policy under California law. The California Court of Appeal disagreed. Lagatree v. Luce, Forward, Hamilton & Scripps, 74 Cal.App.4th 1105 (Cal. App. 1999). In order to succeed in a claim of violation of public policy in California, an employee must show that the employer has interfered with some policy of the public. The court said that Lagatree had a right to a jury trial and a right to a judicial forum, but that these rights were subject to being bargained away and waived. Because the rights could be waived by agreement, they were not rooted in public policy. Therefore, the discharge was not wrongful under California law. (In a related case, EEOC v. Luce, Forward, Hamilton & Scripps (9th Cir 09/03/2002), discussed below, the EEOC sued Mr. Lagatree's employer and obtained an injunction against the use of arbitration agreements, but the Ninth Circuit reversed.)

B. Legal Claims Subject To Arbitration

A well-drafted arbitration clause should keep practically every employee-employer dispute out of court. This includes cases involving federal discrimination statutes (e.g., Title VII, ADA, ADEA), federal wage and hours laws, state common law claims involving contract rights and torts (e.g., wrongful discharge), state statutes, and state constitutional provisions. Unlike waivers in collective bargaining agreements, courts should give broad effect to broad language in individual contracts, and not require a laundry list of specific statutes. See Brown v. ITT Consumer Financial Corp., 211 F.3d 1217 (11th Cir 2000). But see, Prudential Insurance Co. of Amer. v. Lai, 42 F.3d 1299 (9th Cir. 1994). The clause can also capture disputes based on events that took place prior to signing the agreement.

For a period of four years the Ninth Circuit took the position that an employer cannot require, as a condition of employment, that an employee sign an agreement to arbitrate Title VII cases. Duffield v. Robertson Stephens & Co. 144 F.3d 1182 (9th Cir.) cert. denied, 525 U.S. 982 (1998). The Duffield case was expressly overruled in EEOC v. Luce, Forward, Hamilton & Scripps (9th Cir en banc 09/30/2003) by an 8-3 vote.

C. Enforceability Of The Agreement

Although most current litigation involves attempts to enforce arbitration agreements by invoking the Federal Arbitration Act, agreements to arbitrate also may be enforceable by virtue of state statutes or state common law. Nearly all states have arbitration statutes that require courts to enforce arbitration agreements. These statutes vary from state to state, and typically are different from the FAA. For example, most state statutes are modeled on the Uniform Arbitration Act and specifically apply to all written employment agreements, and do not contain the FAA's exclusion of contracts signed by transportation workers. In many states an agreement to arbitrate is enforceable as an ordinary contract without the need to resort to statutory authority.

Before examining the enforceability of an arbitration agreement, it is important to understand the "separability" doctrine outlined by the United States Supreme Court inPrima Paint Corp. v. Flood & Conklin Manufacturing Co. 388 U.S. 395 (1967). This case makes a distinction between arguments that the agreement to arbitrate is unlawful and arguments that the underlying agreement containing the arbitration clause is unlawful. In Prima Paint two commercial parties signed a contract in connection with the sale of a business, and the contract contained an arbitration agreement. The plaintiff sued to rescind the contract on the ground that it was fraudulently induced by the defendant's misrepresentation of solvency, and the defendant moved to compel arbitration. The Court separated the issues of alleged fraud as to the underlying contract and alleged fraud as to the arbitration clause itself. Because there was no claim of fraud as to the arbitration clause, the Court held that the arbitration agreement must be enforced. Any challenges to the enforceability of the underlying contract are to be decided by the arbitrator and not by a court. Thus, if the disputed issue is within the scope of the arbitration clause, the arbitrator rather than the court will decide whether the underlying contract is tainted by fraud, illegality, mistake, duress, unconscionability, ultra vires and the like. The court's job is to focus on the enforceability of the agreement to arbitrate.

In cases arising under state arbitration statutes most courts have followed the Prima Paint separability doctrine, but a significant minority have not. Revised Uniform Arbitration Act § 6, Comment 4 (collecting cases). The Revised Uniform Arbitration Act codifies the Prima Paint rule as follows:

The court shall decide whether an agreement to arbitrate exists or a controversy is subject to an agreement to arbitrate. Revised Uniform Arbitration Act § 6(b).

An arbitrator shall decide whether a condition precedent to arbitrability has been fulfilled and whether a contract containing a valid agreement to arbitrate is enforceable. Revised Uniform Arbitration Act § 6(c).

In Howsam v. Dean Witter Reynolds, Inc. (12/10/2002), the US Suprme Court held that it is for the arbitrator, not the court, to decide whether a contractual statute of limitations barred arbitration. [This is not an employment case, but should have an impact on employment cases.]

When analyzing whether an arbitration agreement is enforceable, there usually are two separate questions. First, there is the question of whether arbitration (or the specific arbitration agreement) is compatible with the underlying legal claim being raised by the employee. This question arises most dramatically when the underlying claim is that the employer has violated a federal civil rights act. Second, there is the question of whether the specific agreement is enforceable as a matter of state law. This question involves issues such as offer, acceptance, consideration, and unconscionability.

The Supreme Court has had several occasions to decide whether to enforce agreements to arbitrate claims arising under federal statutes. Without exception, the Court has found that arbitration under the FAA was compatible with the other federal statutes. One of those decisions involved a federal civil rights statute dealing with employment, the Age Discrimination in Employment Act (ADEA). In Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991), the Court found nothing in the ADEA's text or legislative history that explicitly precluded arbitration, and found no "inherent conflict" between arbitration and the ADEA's underlying purposes.

In Gilmer the Court gave short shrift to several of the employee's objections to the specific arbitration system set up by the New York Stock Exchange (NYSE). In doing so, the Court made the following points: (1) The NYSE rules provide protections against biased arbitrators by requiring disclosure of arbitrators' backgrounds, requiring disclosure of circumstances that might preclude arbitrators from being objective and impartial, and providing for peremptory and for-cause challenges. FAA § 10 allows courts to overturn awards that are tainted by partiality or corruption. (2) Although NYSE rules allow less discovery than is allowed in federal court, they allow for production of documents, requests for information, depositions, and subpoenas. (3) NYSE rules require written awards that include a summary of issues and a description of the award. These awards are available to the public. (4) There are no restrictions on the types of relief an arbitrator may award. (5) "[S]o long as the prospective litigant effectively may vindicate [his or her] statutory cause of action in the arbitral forum, the statute will continue to serve both its remedial and deterrent function." Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 28 (1991), quoting from Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 637 (1985).

The FAA itself does not spell out any specific requirements for an enforceable arbitration clause. Nevertheless, some courts require specific safeguards, saying that they are necessary in order for arbitration to be consistent with federal civil rights statues. The District of Columbia Circuit Court has taken the lead. Cole v. Burns International Security Services, 105 F.3d 1465 (D.C. Cir. 1997). interpreted Gilmer as requiring five safeguards when an employer, as a condition of employment, requires arbitration of future disputes involving federal civil rights statutes: (1) a neutral arbitrator, (2) more than minimal discovery, (3) a written award, (4) availability of all remedies that would be available in court, and (5) no requirement for the employee to pay either unreasonable costs or any of the arbitrator's fees or expenses. Although it is often said that an arbitration agreement must provide these safeguards, there is probably no requirement that the agreement spell out each one. It should be enough that the agreement does not affirmatively take them away.

The Cole safeguards should not be required in an FAA case involving a claim arising under state law, as the court that decided the Cole case has recognized. In bothGilmer and Cole the courts were asking whether Congress intended to preclude compulsory arbitration under the ADEA or other federal statues. The FAA preempts state laws that are hostile to arbitration, so it will not matter whether the state legislature intended to preclude arbitration. In Brown v. Wheat First Securities, Inc., 257 F.3d 821 (D.C. Cir. 2001), a former employee went to arbitration on a claim that his discharge from employment was in violation of District of Columbia law. The arbitration panel ruled against the employee and also assessed him a fee of $6,365, which included costs that would be considered arbitrators' fees under the Cole decision. Meanwhile, he brought a lawsuit alleging the same claim, and sought to vacate the arbitration award. The court confirmed the arbitration award, and announced that it would not extend theCole logic to cases involving arbitration of state law claims. (Although the Cole safeguards may be unnecessary to the validity of an arbitration agreement when the underlying dispute involves state law, the same safeguards may be necessary to avoid unconscionability, as discussed below.)

In Armendariz v. Foundation Health Psychcare Services, 6 P.3d 669 (Cal. 2000), the California Supreme Court addressed the five Cole safeguards. The big differences between Armendariz and Cole are that Armendariz arose under the California Arbitration Act (CAA) rather than the FAA, and the underlying claim involved the state anti-discrimination statute rather than a federal statute. Therefore, it was proper for the California court to ask whether arbitration was inconsistent with the state anti-discrimination statute. Young v. Ferrellgas, L.P., 21 P.3d 334 (Wash. App. 2001) (Arbitration inconsistent with specific state statutory and common law claims). The court concluded that a pre-dispute arbitration agreement would be enforced if it (1) provides for neutral arbitrators, (2) does not limit statutory remedies, (3) provides some discovery, (4) provides for written awards, and (5) does not require the employee to bear any type of expense that the employee would not be required to bear if he or she were free to bring the action in court. (The Armendariz court discussed two other safeguards under the heading of unconscionability, discussed below.)

FAA §2 creates one exception to the rule that arbitration agreements are enforceable: "such grounds as exist at law or in equity for the revocation of any contract." This will include all grounds that either involve contract formation (e.g., defective offer, lack of acceptance, and lack of consideration) or allow one party to set aside or avoid a contract (e.g., fraud, duress, mistake, and unconscionability). All of these grounds are matters of state law, First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938 (1995), and the details will vary from state to state. However, the FAA language is "such grounds as exist . . . for . . . any contract." [Emphasis added.] Therefore, there is a federal requirement that the state law grounds be even-handedly administered, and not impose special burdens on arbitration agreements. Doctor's Associates, Inc. v. Casarotto, 517 U.S. 681 (1996). So, for example, state doctrines of consideration should be applied in arbitration cases in the same way they are in other cases, not in a way that creates special hurdles for arbitration agreements.

Source. But as I said, IANAL. If you want actual legal advice, you or the OP should go see a lawyer. If you want to sit here and have some strangers on the internet that this is "worth taking a stand for" or whatever, knock yourself out. Bottom line: there is no blanket guarantee of a trial by jury and yes, it does look like your company can require you to agree or leave. You'd have to consult an attorney to find out for sure and include things like the actual agreement to make sure all the bases were covered (the OP neglected to actually include the contact in question, making it much harder to judge if it is enforceable) though I'd imagine working for such a large company they can afford to hire competent attorneys.

And while you might get a prosecutor to involve herself in the above extreme example, smaller scale instances of gender discrimination, sexual harassment, and more subtle forms of racial prejudice would all be virtually unprosecutable and therefore become more and more prevalent as those with power adjust to the idea that there are no consequences for abusing it.

Sure there are consequences, just not through the courts, through ADR. You seem to think that going to ADR means there is no discovery, that there isn't a Supreme Court case requiring a neutral arbitrator and that they're just going to side with the company.
posted by Brian Puccio at 6:50 PM on June 18, 2009

Seems like a form of duress.

gjc, not according to the information above, not it's not. An agreement signed under take-it-or-leave-it conditions is called an "adhesion contract" because the employee must either adhere to the offer or reject it. Although the term "adhesion contract" is often used as a pejorative, the vast bulk of all contracts are adhesion contracts, and they are nevertheless enforceable. In order for adhesion contracts to be unenforceable, there must be some provision in the contract that is so one-sided as to be unfair or oppressive.
posted by Brian Puccio at 6:52 PM on June 18, 2009

And as my link says, if you bothered to read all of it, the 7th Amendment only applies to federal cases. As I said, if you want to sue your employer in your state and not federal court, it does not apply. Your state's constitution and laws will determine if you have this right.

Most employee/employer suits include at least one federal issue that is sufficient to get into federal court. Failing that, almost every single state has a right to a jury trial in civil cases comparable to or stronger than the Seventh Amendment right. Of the first 25 states I checked, only Louisiana did not have an obvious jury trial right.
posted by jedicus at 7:47 PM on June 18, 2009

Mod note: This is a followup comment from the asker.

If it helps:

Yes, I am in the USA.

I am not in a right-to-work state, but I'm not in the union since I'm a salaried employee. I'm not really sure how that affects me in this.

@BrianPuccio The Company is changing the terms of my employment in a down economy, during some of the worst quarters it's ever had, after a series of layoffs that's flooded my area with over-qualified workers and made good jobs like mine extremely hard to come by. The Company also hit us employees with this new ADR procedure as the Arbitration Fairness Act of 2009 sits in Congressional committee review, probably to get everyone to agree to the new ADR before the Act gets passed (the Act apparently has a lot of public support). I do not believe the timing is coincidental.

I have sent an e-mail (and BCC'd to myself at home) to my HR rep requesting clarification of the training material, and expressing in detail my concerns that the Company has adopted a dispute resolution system known to be rife with problems. I have NOT done the usual "click here to indicate that you have completed the training" step that comes at the end, and explained in my email that I'm still unclear about what some of the info presented actually means, so clicking seemed inappropriate.

I've also saved the training material off-site, for later review by counsel if need be.

Finally, I've requested to see certain things in writing--what steps are being taken by the Company to ensure that the mandatory binding arbitration is as genuinely objective and neutral as claimed in the training material, exactly what my rights are in a mandatory arbitration dispute, that sort of thing. I'm pushing back gently--explaining that I have every confidence that a company with a stellar record of leadership in employee relations must surely have taken steps to address the well-established problems with mandatory binding arbitration, that sort of thing. (And that's no b.s., the Company really is a known leader for this sort of thing. Which makes the mandatory arbitration all the more shocking to me).

I really hope that asking these questions doesn't cost me my job. But I just can't imagine working for a company that insists that I agree to give up the right to go to court if I've discriminated against by them. :-(

posted by cortex (staff) at 6:55 AM on June 19, 2009