Some Things to Consider in Deciding if an Employer Can Force You to Arbitrate Your Employment Claims
Did you really sign an arbitration agreement?Not all businesses are run by honest people. Sometimes money will cause be people to make bad decisions, like forging an employees signature to an arbitration agreement. The first question to ask is yourself is: "Did I sign an agreement to arbitrate?" Examine the document closely. Does it look like your signature? Do you recall seeing the document? If you are not absolutely sure the signature is yours, you or your attorney may want to consult an expert graphologist or questioned documents examiner.
If the signature resembles yours, could the employer have "pulled a fast one" by slipping the document into a large stack of documents to be signed?Often will require employees to sign paperwork without affording an opportunity to read or review it. Sometimes, this process will be accompanied by scant or no explanation as to what you are signing. Although there is law saying people are responsible for what they sign, there is also law that forbid lying or misrepresentation in order to induce someone into signing. The circumstances regarding the signing of any "new hire" paperwork should be closely looked at by you and your lawyer to determine if there is basis to claim what is known in the law as "procedural unconscionability."
Do the terms of the claimed agreement seem unfairly one-sided or illegal?Mutuality is the most important factor in determining whether and agreement may be challenged for unconscionability. This means both parties agree to give up and get relatively the same things. Does the agreement say the employee gives up the right to sue for everything under the sun, but the employer retains the right to seek relief in a court for certain types of claims? Such "carve out" provisions may render the agreement partially or totally unenforceable. Or, if the agreement contains terms that are illegal, this too may result in the agreement being unenforceable. An example of an illegal term is one that requires the employee to pay costs or attorney's fees if he or she does not prevail. (See Code of CIvil Procedure section 1284.3). It is important for you and your lawyer to closely examine the claimed agreement to determine if any unfair, one-sided or surprising provisions exist that may give rise to a claim of "substantive unconscionability."