no MoRE FoRCED aRbitRation oF SEXuaL HaRaSSMEnt CLaiMS labor & Employment law Section Chairs : AmandaBiondolino – SassLawFirm & LaKishaKinsey-Sallis – Fisher & PhillipsLLP
Employees can now decide to arbitrate their sexual harassment or assault claims or file their claims in court .
As a condition of employment , employers frequently require employees to sign agreements waiving their rights to file any potential legal claims in court or bringing joint , class , or collection actions . Generally , these “ pre-dispute ” arbitration agreements and joint-action waivers are enforceable under the Federal Arbitration Act and Florida law . 1 Proponents of these agreements view arbitration as an inexpensive and efficient process to address employment claims , and emphasize that the confidential nature of the process is beneficial to both the employer and employee .
Despite the possible benefit to employees ’ interests , such as less likelihood to be publicly labeled as litigious or public disclosure of embarrassing personal facts , many times employees oppose arbitration once a dispute arises , arguing arbitration denies them due process and appeal rights . Employees often find the limited discovery permitted in arbitration , typically much less than allowed by the federal or state rules of civil procedure , a substantial disadvantage to proving their case . Typically , the employer
possesses most evidence supporting their claims . Opponents of arbitration believe it fails to address systemic discrimination , wage , and whistleblower violations . And , for employees facing an adverse arbitral award , opponents often assert that the grounds for appealing or vacating an arbitration award under state and federal law are quite narrow . 2
On March 3 , 2022 , President Biden signed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (“ Act ”) of 2021 with wide bipartisan support . 3 Under the Act , pre-dispute arbitration agreements or joint , class , or collective actions waivers are invalid and unenforceable for sexual assault or sexual harassment disputes under federal , state , or tribal law . The Act is limited to only claims of sexual harassment or sexual assault . The law went into effect on March 3 , 2022 . It applies to agreements signed before March 3 , 2022 , so long as the dispute or claims to be litigated arise or accrue on or after March 3 , 2022 . Employees can now decide to arbitrate their sexual harassment or assault claims or disregard the pre-dispute arbitration and joint- action waiver agreement and file their claims in court . The court , not the arbitrator , determines the applicability of the Act .
Whether the Act will serve as a precursor to similar laws excluding claims such as racial or other forms of discrimination from forced arbitration remains to be seen . As of the writing of this article , proposed legislation that would ban mandatory pre-dispute arbitration agreements in all employment matters is set for a vote before the U . S . House of Representatives . 4 n
1
Epic Sys . Corp . v . Lewis , 138 S . Ct . 1612 ( 2018 ); Gilman ± Ciocia , Inc . v . Wetherald , 885 So . 2d 900 ( Fla . 4th DCA 2004 ).
2
Fla . Stat . § 682.13 and 9 U . S . C . § 10 .
3
See Ending Forced Arbitration Of Sexual Assault And Sexual Harassment Act of 2021 , Pl 117-90 , March 3 , 2022 ,
136 Stat . 26 .
4
The Forced Arbitration Injustice Repeal Act ( H . R . 963 )
Author : Cynthia Sass – Sass Law Firm
JoIn thE Labor & EmpLoymEnt Law sECtIon at hILLsbar . Com .
M a y - J u n 2 0 2 2 | H C B a L a W y E R
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