Forced arbitration is when employees faced with an issue at work are forced to have an arbitration instead of being able to go to court with a fair judge and jury. Often times, as a condition of employment, employers will not hire a worker, or could possibly fire a worker, unless they “consent” to an arbitration clause. Other times it is just assumed that employees agreed to it if they continue to work for their employer after an arbitration policy is announced.

Arbitrators are not judges. They do not need to know the law or have any relevant experience. Even though the arbitrators are not judges, their decisions are final. Also, there are no appeals for arbitrator decisions. They do not have to justify their decisions and the process takes place behind closed doors with no public record. The arbitrators charge parties for their services and often work for the same employer numerous times, tipping the odds significantly in the favor of the employer. One arbitrator and retired trial judge even stated, “You would have to be unconscious not to be aware that if you rule a certain way, you can compromise your future business.”

The main problems with forced arbitration is that the system is in favor of employers, it is not voluntary, there is no informed consent, it can be expensive and important legal protections are undermined.  
Nobody claims there is any problem with truly voluntary “post-dispute” arbitration however. It is a legitimate and sometimes effective way to solve disputes between employers and employees as long as the employee agrees to it after the dispute has arisen. Then the arbitrator will know that the prospect of future business depends on the consent of both the employer and the employee.
This does not just affect whistleblowers. About one of every six United States employers requires forced arbitration. It can be used in any type of case, from sexual harassment to fair benefits and pensions.
The Arbitration Fairness Act would make it illegal for employers to force arbitration on their employees. Congressional action is the only way to fix this problem. It would also prohibit forced arbitration in consumer contracts. So support the Arbitration Fairness Act to end forced arbitration. Contact your representative to urge him or her to co-sponsor H.R. 1873. Ask senators to co-sponsor S. 987. This would be a significant help to whistleblowers by allowing their cases to be heard, as well as improving the effectiveness of other employment rights.

For more information on the AFA, follow this link.

This blog post was written by NWC intern Regan Moore.