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The subject of arbitrating discrimination claims was discussed at the National Employment Law Institute (NELI) Conference held in Chicago, Illinois on July 26 and 27, 2001. Speaking to an audience that consisted primarily of employers, attorneys and human resource professionals, Zachary Fasman, of the law firm Paul, Hastings, Janofsky & Walker in New York, suggested the following ten recommendations for designing a successful arbitration program: -Always obtain a written agreement to arbitrate from employees. This agreement should be open and clear, not buried in the employee handbook; -Define the scope of arbitrable claims broadly; -Anticipate the likely defendants, including not just the company, but its affiliates, supervisors and benefit plans, and provide that they are third party beneficiaries to the arbitration promise; -Do not attempt to preclude employees from resorting to government agencies that have a state mandate, such as the National Labor Relations Board, the Equal Employment Opportunity Commission and its state and local affiliates, as well as state unemployment and workers’ compensation agencies; -Consider the risk of exempting from arbitration employer initiated injunctive actions, i.e., if the agreement allows only the employer to seek a judicial forum when it prefers that forum over arbitration while requiring the employee to arbitrate all claims, this section of the agreement will likely be voided by courts as unconscionable or unenforceable; -Resist overreaching by purporting to foreclose remedies, e.g., by attempting to insulate the company from Title VII damages, thus creating an impermissible waiver of Title VII rights; -Resist overreaching by unconscionably shortening the statute of limitations; -Resist overreaching through inequitable apportionment of costs and fees involved in the arbitration process; -Consider reserving certain appellate rights, such as drafting the agreement to include a limited form of appellate review should an arbitrator’s decision seem aberrational; -Avoid overreaching in implementation, i.e., calculate the various risks of, for example, (1) presenting the document on a “sign or be fired” basis, (2) failing to discuss the agreement until the employee’s first day at work or (3) implementing the program differently than written.

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