of employment disputes has become
widespread. While some employers
offer employees the ability to "opt out"
of mandatory arbitration, many require
a condition of employment. Whatever
the precise structure of an arbitration
agreement or policy, before proceeding, it
is important to understand the advantages
and disadvantages of resolving these
disputes outside of a judicial forum.
Many of the benefits of arbitrating
employment disputes are well known,
and are the same as would apply in
a commercial setting. Arbitration
proceedings can yield results more
quickly than traditional litigation,
especially since there are limited grounds
to appeal the decision of an arbitrator.
In addition, many employers prefer
employment disputes to be decided by an
arbitrator rather than a jury, fearing that
jury sympathies may lie with employees.
Likewise, arbitration usually offers the
opportunity to maintain the confidentiality
of employment disputes. Finally, many
arbitration agreements or policies include
class or collective action waivers, which
limit the ability of employees to bring
anything other than individual claims. The
enforceability of these class or collective
action waivers have been the subject of
substantial controversy, and the United
States Supreme Court is set to rule on the
issue in its next term.
arbitration, it is important not to overlook
its disadvantages. Arbitration can be very
expensive. In addition to administrative
fees, parties to an arbitration agreement
must pay the arbitrator. Arbitrators
usually charge hourly fees similar to
those charged by attorneys; a week-long
arbitration can cost in excess of $20,000
will not enforce an arbitration agreement
that would require an employee to bear
a substantial portion of these costs on
the grounds that it does not provide the
employee meaningful access to a forum
in which to bring claims. As a result, in
the employment context, the employer
generally bears the most if not all of the
costs of the arbitration.
Another potential disadvantage to
arbitration is the lack of appellate rights.
If an arbitrator misapplies the law or
makes an excessive damages award, there
is likely no remedy beyond asking the
arbitrator to reconsider. Under the Federal
Arbitration Act (FAA), the following are
the limited grounds on which a court may
decide to vacate an award:
the hearing or in refusing to hear
evidence pertinent and material
to the controversy; or of any other
misbehavior by which the rights of any
party have been prejudiced; or
mutual, final, and definite award upon
the subject matter submitted was not
made.
as a streamlined dispute resolution
process, it too can become bogged down
in procedural and discovery matters.
Timmins LLC, where he has a broad litigation
practice and has successfully tried numerous jury
and bench trials in federal and state courts. He
has also practiced before numerous arbitration
tribunals. He has extensive experience in all
aspects of commercial transactions, including
purchase and sale agreements, real estate,
leasing, construction, employment, insurance,
partnership and corporate agreements, secured
lending and contracts.
Amy Hunt's practice focuses on complex
commercial litigation, including real estate,
antitrust, banking, trade secret, insurance,
bad faith and employment litigation. She has
represented public and private entities as well as
individuals in state and federal courts. She also
has extensive experience arbitrating commercial
and employment disputes and also appears on
behalf of creditors in bankruptcy proceedings.
450 East 17th Avenue, Suite 210
Denver, Colorado 80203
ah@timminslaw.com
timminslaw.com