Over the last decade, employers have more and more often incorporated jury waiver or mandatory arbitration clauses into their employment arrangements to avoid the perceived horror of facing jury review of the way they treat their employees. These clauses are often presented in circumstances that many argue are deceptive, if not downright coercive.
Despite the significance of an employee signing away a legal right that lies at the very base of our civil justice system, there is almost never any effort to explain to the employee what the waiver or arbitration agreement means or even that they are giving up any right at all. In fact, quite the reverse is the rule. The statement of jury waiver or agreement to arbitrate is often either stuck at the very end of an online or hard copy application form or is presented as a separate document to the employee by a third assistant personnel clerk on the first morning of work as part of an orientation papers package that contains the W-4 form, the health, disability and life insurance election forms, perhaps, a lengthy personnel handbook with an attached receipt and acknowledgement of understanding form and any other documents the company feels it needs for its personnel file on the new worker.
These statements do not inform; they entrap. Whether submitted as part of an application form, on the first day of employment or at some other time, few, besides the most sophisticated, job seekers retain copies of the pertinent document. The jury waiver or arbitration language is couched in legalese that is just so much mumbo jumbo to the average job applicant or worker; no explanations are offered and the pertinent document is signed without any understanding of its meaning or importance by anyone except the company’s lawyers. It does not come up until most often long after the fact in the event that there is a dispute with the employer. Then defense counsel raises the jury waiver or arbitration agreement from its dusty grave in the company’s personnel files and the employee, or more often the employee’s lawyer, is informed of it.
Today, jury waivers and arbitration agreements are routinely accepted by the courts. The courts most often seem to assume that they are signed by sophisticated parties with real, mutual bargaining power. Sometimes this is true, but more often it is not. To pretend, as the courts seem currently to do, that the average applicant for a clerk’s job at a street-level retail establishment or for work making french fries in a fast-food restaurant understands the implications or the forfeiture of rights involved in a jury waiver or arbitration agreement approaches the absurd.
Before giving effect to any such agreement, the courts should require proof that the employee had an actual understanding of what the waiver or arbitration language meant, the rights that were being given up and that he or she freely agreed to that waiver as a condition of employment. In other words, the courts should require that the employer bear the burden of proving voluntary and knowing consent before giving effect to any jury waiver or arbitration agreement. We submit that few employers today could meet that burden.