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Can I negotiate a fair arbitration agreement?

In our last post we offered an update on some of the key labor-related bills that have been working their way through the legislature in Sacramento. One that earned a veto from the governor was Assembly Bill 465.

That's the measure that sought to restrict the ability of employers to require prospective hires to agree to settle any possible employment disputes through arbitration rather than the courts. In explaining his veto, the governor said there are already laws on the books controlling the use of arbitration and that he didn't think the bill could have withstood a legal challenge in the courts.

We may never know about that. What we do know is that many employers do include a provision requiring arbitration of disputes in their employment contracts. So the question it seems fair to ask is whether there is any room for negotiation over such agreements.

Many experts would likely agree that businesses that have turned to arbitration are unlikely to put their agreements on the shelf. But some employers might be willing to negotiate the details and that could open the door for some changes that might be fairer for you. To determine what issues should be on the table, it would be wise to consult an attorney.

Generally speaking, terms you might want to address if negotiation is allowed would include:

  • Having equal say with your employer over who an arbitrator will be
  • Requiring that the arbitrator disclose any possible conflicts of interest
  • Specifying that the employer pay the cost of arbitration
  • Maintaining your right to an attorney
  • Securing the right to remedies that might fall outside the normal scope of arbitration, such as being able to seek punitive damages or compensation for emotional distress

And, as always, be sure you thoroughly read through any document before you sign it.