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I'm suspicious, not litigious--should I sign my rights away?
(FORTUNE Magazine) – DEAR ANNIE: Yesterday my boss came into my cubicle and put a document on my desk that I am supposed to sign. It says that in the event I ever have a problem with the company that could be "a reasonable basis for a legal action," I agree not to sue but instead to submit to "alternate methods of dispute resolution including, but not limited to, mediation or arbitration." So my company is taking away my right to sue it. I have no intention of ever suing anybody, but nonetheless I haven't signed this yet. What do you think? What about my constitutional right to due process? --Suspicious DEAR SUSPICIOUS: What about it? Your right to due process is still sacrosanct. Of course, before signing any contract (especially if you aren't sure you understand it), you'd be wise to have a lawyer look it over for you. But I think we have two separate problems here. One is the legal issue of your rights, and the other is why you signed yourself "Suspicious." Clearly, you're assuming you're going to get the short end of the stick. Interesting. Long story there, I'd bet. We'll get to that. But first the law. The Supreme Court decided in 1991 in Gilmer v. Interstate/Johnson Lane Corp. (and other courts, notably the Ninth Circuit, have since affirmed) that mediation and arbitration are valid methods of dispute resolution. In fact, arbitration is so binding that no federal court will entertain an appeal. In other words, whoever wins, wins. Period. For plaintiffs, that is a bit of a mixed blessing. If your employer prevails, you'll just have to accept that--and, having signed away your access to the court system, you can forget about those headline-grabbing multigazillion-dollar awards that people sometimes get in jury trials. But that's less of a drawback than it may seem. How often do you think the plaintiffs actually get that dough? By the time the lawyers get through burying one another in documents for donkey's years, some appeals court usually whittles your big jury award way down to a far saner number or throws it out altogether. Arbitration, by contrast, is a done deal. Let's say you were terminated under stinky circumstances: Your boss told you, for example, that you are too old to do your job. (And yes, some bosses are dumb enough to fire people on those grounds.) And let's say you're seeking reinstatement, plus back pay, plus punitive damages. Once an arbitrator has agreed with you, you get that--and you get it now. If a judge or jury says so, maybe you'll get it in five years. Or ten. Or never. What makes more sense and will cost you less money, anxiety, and stress? Note to networks: Why not a TV show about arbitrators? Why should lawyers get all the, um, glory? The arbs' equivalent of the bar is the American Arbitration Association (www.adr.org), whose alternative dispute-resolution programs now cover seven million U.S. employees and counting. The point of these programs, says AAA senior vice president Robert Meade, is "to create a system within a company that allows disputes--everything from difficulty getting along with a co-worker to complaints about the dental plan--to be settled in-house, without intervention from anyone else. What we've found so far is that, in companies with these programs, about 80% of employees' problems are resolved internally, just by people sitting down and talking to each other." Of those that aren't, about 1,100 last year went on to the next step, mediation, wherein the AAA sends in a mediator to help both sides agree. Only about 300 cases per year in the U.S. are so resistant to a meeting of the minds that they end up in the ultimate alternative-dispute-resolution forum, binding arbitration. If you should someday become one of those statistics, you can hire a lawyer to look out for you--or you can represent yourself, which is more practical in arbitration than in court cases, because the rules of evidence and other procedural pitfalls are far less complex. The AAA has set up protocols for its arbitrators that are, if anything, more stringent than those that judges must observe. Should you get into a situation where you need an arbitrator, you have the same veto power over which arbitrator you get as your employer does. Both sides must agree, based on detailed bios--covering education, experience, and training--on who will hear the case. Says Eve Rachel Markewich, an employment-law partner at law firm Blank Rome (www.blankrome.com) in New York City: "This is not some kind of closed-door, backroom thing. The arbitrator is not going to be the CEO's uncle." Markewich, who usually represents employers, adds, "I have noticed over the years that, if anything, arbitrators seem to go out of their way to be fair to employees." So assuming your lawyer's okay with it, why not just sign the damn thing? If ever you morph from a hypothetical plaintiff into a real one, you can still file with the EEOC or any state or federal agency whose job it is to uphold public policy on problems like race discrimination, sexual harassment, whistleblowing, and the like. By law, no alternative-dispute resolution program or contract can take that right away from you. And if, say, the EEOC investigates your complaint and finds it has legs, nothing prevents them from bringing suit on your behalf and getting you whatever the court decides you deserve. Now, can we get back to why you are suspicious? I'm guessing this arbitration agreement isn't the whole story. What has this employer done in the past that makes you balk at signing anything? Why can't you ask your boss what's going on here? Has your boss signed? Can you have a conversation? Are you in the right job? In the long run, those are likely to be the real questions. So I'm just wondering. Send questions to askannie@fortunemail.com. Annie offers advice weekly at www.askannie.com. |
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