employment-arbitration-agreement

# Employment Arbitration Agreement

Drafts a mutual arbitration agreement for employment relationships, balancing employer protections with procedural fairness to survive unconscionability challenges.

## Prerequisites

Collect before drafting:

1. **Jurisdiction(s)** — employee work state(s) (drives unconscionability standards, PAGA treatment)
2. **Employee type** — prospective vs. current (consideration analysis); executive vs. general
3. **Existing documents** — offer letter, handbook, prior arbitration agreements, equity plans
4. **Administrator** — JAMS or AAA (determines rule set)
5. **Company entity** — full legal name

## Output Structure

### 1. Recitals & Parties

| Element | Requirement |
|---|---|
| Parties | Full legal entity name + employee full legal name |
| Effective date | Specify; clarify current vs. prospective employment |
| Consideration | Prospective: employment itself. Current: independent consideration required (bonus, equity, continued employment per state law) |
| Mutual obligation | Both parties bound — required for enforceability |

### 2. Covered Claims

Draft broad coverage with specific enumeration and "illustrative, not exhaustive" language:

- **Statutory**: Title VII, ADEA, ADA, GINA, FLSA, state equivalents
- **Wage & hour**: overtime, meal/rest breaks, misclassification, commissions
- **Common law**: wrongful termination, breach of contract, implied covenant
- **Retaliation**: any statute or public policy
- **Post-employment**: trade secrets, non-competes, non-solicits
- **Temporal scope**: before, during, and after employment

### 3. Excluded Claims & Carve-Outs

| Exclusion | Reason |
|---|---|
| Workers' comp, UI | Statutory administrative schemes |
| ERISA benefits | Conflicts with statutory procedures |
| Trade secret/non-compete injunctions | Employer needs immediate judicial remedy |
| NLRB charges | Protected concerted activity |
| Agency charges (EEOC, state) | Filing right preserved; individual damages arbitrated |
| PAGA (CA) | Individual PAGA to arbitration; representative PAGA per *Viking River Cruises v. Moriana* / *Adolph v. Uber* [VERIFY current standing] |
| Auto-exemption savings clause | Any claim court determines non-arbitrable |

### 4. Arbitration Procedures

```
Administrator:    [JAMS / AAA]
Rules:            [JAMS Employment / AAA Employment Rules]
Arbitrator:       Single neutral; retired judge or 10+ yr employment attorney
Location:         Metro area where employee works/worked
Panel threshold:  Three arbitrators if claim > $250,000 (optional)
Fallback:         Administrator unavailable → mutual selection → court appointment
```

**Discovery** (critical for enforceability):
- 5 depositions per side presumptive; more on good cause
- Document requests, interrogatories, expert discovery permitted
- Arbitrator resolves disputes and may sanction abuse

**Arbitrator authority**:
- All court-available remedies (compensatory, punitive where authorized, injunctive, declaratory)
- Written decision with findings of fact and conclusions of law
- Must apply substantive law; may rule on dispositive motions
- May NOT consolidate without written consent or award relief to non-parties

### 5. Cost Allocation

| Cost | Allocation |
|---|---|
| Employee filing fee | Capped at local court filing fee (~$200–$400); Company advances on hardship |
| Administrator/arbitrator fees | Company pays |
| Attorney's fees | Each bears own; statutory fee-shifting if employee prevails |
| Company prevailing | No fee recovery unless frivolous/bad faith |
| Transcript | Ordering party; Company if arbitrator requires |
| Savings clause | If unenforceable → reform to minimum; presume Company bears disputed costs |

### 6. Waivers

**Jury trial waiver**:
- ALL CAPS or bold — must be conspicuous
- Mutual; separate signature/initial line; acknowledgment of understanding

**Class/collective action waiver**:
- Individual claims only; no class, collective, or representative proceedings
- If waiver invalidated → that claim severed to court; rest stays in arbitration
- Employee election: if class waiver struck, employee may void entire agreement

### 7. Employee Acknowledgments

- [ ] Received complete copy
- [ ] Adequate review period (5 business days prospective; 21 days current)
- [ ] Opportunity to consult attorney
- [ ] Understands jury trial and class action waivers
- [ ] Waiving forum, not substantive rights
- [ ] Condition of employment (if applicable — state clearly)
- [ ] Revocation period per state law (typically 7 days)
- [ ] E-SIGN compliance language if electronic

### 8. General Provisions

| Provision | Content |
|---|---|
| Governing law | FAA (9 U.S.C. § 1 et seq.) for enforceability; state substantive law for underlying claims |
| Severability | Sever invalid provisions; reform to minimum enforceable extent |
| Integration | Entire agreement re: arbitration; supersedes prior terms; mutual written consent for modifications |
| Survival | Survives termination; binds successors, assigns, heirs; enforceable in bankruptcy |

### 9. Signature Block

- Employee and Company representative: signature, printed name, date (+ title for Company)
- Separate initial lines for jury trial waiver and class action waiver
- E-SIGN acknowledgment block if electronic
- Confirmation employee received executed copy

## Enforceability Checks

**Armendariz requirements** (CA and following states) — all five required:

1. Mutual obligation to arbitrate
2. Adequate discovery rights
3. No limitation on statutory remedies
4. Employer bears arbitration costs
5. Written reasoned decision

**Key statutes and cases**:
- Ending Forced Arbitration Act (9 U.S.C. § 401–402): invalidates pre-dispute arbitration for sexual assault/harassment claims [VERIFY current scope]
- *Viking River Cruises v. Moriana* (2022) / *Adolph v. Uber Technologies* (2023): individual PAGA compellable; representative standing may survive [VERIFY]
- Current-employee consideration: varies by state — some accept continued employment, others require independent consideration

## Pitfalls

- Do NOT include unreasonably short limitations periods, one-sided discovery, or prohibitive costs — unconscionability risk
- Do NOT restrict employee's right to discuss wages/working conditions (NLRA § 7)
- Do NOT draft without researching jurisdiction-specific enforceability standards
- Use plain language accessible to non-lawyers; defined terms used consistently